Counsel for the Intervenors,
Evangelical Fellowship of Canada and Focus on the Family (Canada) Association

Place and Date of Hearing:

Vancouver, British Columbia
26th and 27th April, 1999

Place and Date of Judgment:

Vancouver, British Columbia

30th June, 1999

Written Reasons by:

The Honourable Madam Justice Southin

Concurring Reasons by: (P. 82, para. 132)

The Honourable Madam Justice Rowles

Dissenting Reasons by:

The Honourable Chief Justice McEachern (P. 129, para. 220)

Reasons for Judgment of the Honourable Madam Justice Southin:

[1] The Crown appeals from a judgment of the Honourable Mr. Justice Shaw pronounced the 13th January, 1999, acquitting the accused of counts two and four of this indictment:

JOHN ROBIN SHARPE stands charged that/est inculpé qué:

Count 1

He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession for the purpose of distribution or sale, child pornography: computer discs containing a text entitled Sam Paloc's Flogging, Fun and Fortitude - A Collection of Kiddikink Classics, contrary to Section 163.1(3) of the Criminal Code,

AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.

Count 2

He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession child pornography: computer discs containing a text entitled Sam Paloc's Flogging, Fun and Fortitude - A Collection of Kiddiekink Classics, other writings and photographs, contrary to Section 163.1(4) of the Criminal Code,

AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.

Count 3

He, on or about the 13th day of May, 1996, at or near the City of Vancouver, in the Province of British Columbia did have in his possession, for the purpose of distribute [sic] or sale, child pornography: books, manuscripts and stories, contrary to Section 163.1(3) of the Criminal Code,

AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.

Count 4

He, on or about the 13th day of May, 1996, at or near the City of Vancouver, in the Province of British Columbia did have in his possession child pornography: books, manuscripts, stories and photographs, contrary to Section 163.1(4) of the Criminal Code,

AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.

[2] Upon a voir dire at the commencement of the trial of the indictment, the learned judge held that s. 163.1(4) of the Criminal Code, enacted in 1993 by S.C. 1993, c. 46, is inconsistent with s. 2(b) of the Charter ["Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;"], was not saved by s. 1, that is to say, it is not a "reasonable limit ... as can be demonstrably justified in a free and democratic society" and, by virtue of s. 52 of the Constitution Act, 1982, is "of no force or effect".

[3] The learned judge dismissed the accused's constitutional attack upon subsection (1)(b) in the context of subsection (3) of s. 163.1 of the Criminal Code. Because that dismissal was upon a voir dire and there is no right of appeal from a ruling on a voir dire as such, either by the Crown or the accused, should the accused be tried hereafter and convicted on either or both of counts one and three, he will have the right to address that constitutional issue upon an appeal to this Court.

[4] For that reason, I think it would have been better had this case gone to trial on counts 1 and 3 before this appeal was brought on for hearing so that all issues of constitutionality arising on s. 163.1 could be addressed in one appeal.

[5] The learned judge's conclusion on the constitutionality of subsection 163.1(4) generated a great deal of outrage in the media. I infer that many of those who gave vent to their outrage knew nothing whatever of the text of s. 163.1. What, in their ignorance, they conjured up in their minds was the spectre of a judge giving judicial approval to sexual exploitation of the prepubescent, whether of the male or female sex, contrary to the will of Parliament.

The Meaning of Words

[6] In this judgment, when I myself use the word "child", in contradistinction to when I am quoting someone else's words, I mean those below the age of puberty. At common law, these ages were deemed to be twelve for a girl and fourteen for a boy. As, however, fourteen is the age of consent in Canada and has been, for girls, for over one hundred years (see the Criminal Code, 1892, s. 269), I define a "child" as anyone under the age of fourteen years.

[7] I appreciate that in the latter part of this century, fifteen, sixteen and seventeen-year-olds have been considered barely more than children. Our forebears thought no such thing. Boys were sent to sea at thirteen or fourteen and girls could be apprenticed to domestic service, with their consent, at twelve. Boys under eighteen, by lying about their age, fought in the Forces in both wars. The late Mr. Justice Harry McKay of this Province joined the army when he was sixteen and went to war. I shall have more to say on this point of adolescents not being children, hereafter.

[8] The term "adolescent" is defined by The Shorter Oxford English Dictionary, 3d ed. (London: Oxford University Press, 1973) at 27, thus:

A. sb. A person in the age of adolescence. B.adj. Growing from childhood to maturity 1785.

and "adolescence" is defined as:

The process or condition of growing up; the growing age; youth; the period between childhood and maturity, extending from 14 to 25 in males, from 12 to 21 in females.

[9] As I understand it, the ages given are a reflection of the process of physical maturation. Thus, in males, the broad bones generally do not complete their maturing until the male is about 25. When I use the term "adolescent", however, I mean anyone between fourteen and eighteen.

[10] By "adult", I mean anyone over eighteen.

[11] "Pornography" and "obscenity" are words which mean different things to different people. In common speech, expressive materials are pornographic or obscene - the words mean more or less the same thing - if the speaker thinks they go too far; they are bawdy or ribald if they are within the speaker's standards of taste and morality.

[12] In so remarking, I do not overlook that Sopinka J., in R. v. Butler, [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449, 70 C.C.C. (3d) 129, said there was some pornography that was not obscene within the meaning of the Criminal Code.

The Relevant Legislation

[13] One cannot determine the constitutionality of any legislation unless one first analyzes what the legislation in issue prohibits. I begin, therefore, with that question.

[14] The section in issue is this:

163.1 (1) In this section, "child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).

[15] As subsections (5)-(7) import part of s. 163, I quote the whole of that section:

163. (1) Every one commits an offence who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or

(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.

(2) Every one commits an offence who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;

(b) publicly exhibits a disgusting object or an indecent show;

(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or

(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

(5) For the purposes of this section, the motives of an accused are irrelevant.

(6) [Repealed 1993, c. 46, s. 1.]

(7) In this section, "crime comic" means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially

(a) the commission of crimes, real or fictitious; or

(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

[16] Because s. 163.1(1)(b) forbids possessing materials which advocate or counsel (that is to say, it does not address advocating or counselling such activity) sexual activity with a person under the age of eighteen years that would be an offence under this Act, one must next ask what is comprised in those words.

[17] At the time this section was enacted, there were a number of provisions in the Criminal Code concerning sexual activity with children and adolescents:

1. By the combined effect of s. 271 [sexual assault] and s. 150.1, it is, and was then, an offence to engage in sexual conduct with a person under the age of fourteen. S. 150.1 contains both an exemption and an exception:

(2) Notwithstanding subsection (1) [consent no defence], where an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is twelve years of age or more but under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused

(a) is twelve years of age or more but under the age of sixteen years;

(b) is less than two years older than the complainant; and

(c) is neither in a position of trust or authority towards the complainant nor is a person with whom the complainant is in a relationship of dependency.

(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant or is a person with whom the complainant is in a relationship of dependency.

2. By sections 151-153:

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offence and is liable to imprisonment for a term and not exceeding ten years or is guilty of an offence punishable on summary conviction.

153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

(2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years.

3. By s. 159(1) and (2):

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.

Although this section, on its face, refers to conduct which may be heterosexual or homosexual, it in fact has its roots in Parliament's decision in 1968 to make homosexual acts between consenting adults no longer a crime [S.C. 1968-69, c. 38, s. 7]. At that time, the age of majority was twenty-one. Section 159 was declared unconstitutional by the Ontario Court of Appeal in R. v. M.(C.) (1995), 41 C.R. (4th) 134, on the ground that it infringed s. 15(1) of the Charter:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Crown did not appeal. No argument was addressed to us that the Ontario Court of Appeal erred.

Thus, sexual activity, whether heterosexual or homosexual with a person between the ages of fourteen and eighteen, is not "an offence under this Act" (unless, perhaps, it falls within ss. 266-268; see R. v. Brown, [1993] 2 All E.R. 75 (H.L.)) so long as it does not transgress ss. 153 and 212(4) and (5).

4. By s. 160:

160. (1) Every person who commits bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(2) Every person who compels another to commit bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(3) Notwithstanding subsection (1), every person who commits bestiality in the presence of a person who is under the age of fourteen years or who incites a person under the age of fourteen years to commit bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

As bestiality, so far as I know, is a crime rare in Canada in this day and age, whatever might have been the situation in the past, I shall say no more about this section.

5. By s. 212(4) and (5):

(4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(5) For the purposes of subsection (4), evidence that the person from whom the sexual services were obtained or attempted to be obtained was represented to the accused as being under the age of eighteen years is, in the absence of evidence to the contrary, proof that the accused believed, at the time the offence was alleged to have been committed, that the person was under the age of eighteen years.

[18] If one imports subsection (1) of s. 163.1, as I understand its effect in light of the judgment of the Ontario Court of Appeal, into subsection (4), subsection (4) means:

(4) Every person who possesses

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of fourteen years or the obtaining of sexual services for a consideration of any person under the age of eighteen years or sexual activity which contravenes s. 153

is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[19] By s. 22 of the Criminal Code:

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, "counsel" includes procure, solicit or incite.

[20] Thus, if A counsels B to have sexual intercourse with C, who is thirteen, and B does so, A is guilty of the offence of sexual assault. If A counsels B to procure for a consideration the sexual services of C, who is seventeen, and B does so, A is a party to the offence enacted by s. 212(4). But I do not understand s. 22 to address itself to what may be called encouraging criminal activity generally.

[21] I consider it right to assume that Parliament was not intending, by subsection (b) in the context of subsection (4), to simply reiterate s. 22. What it was intending to do was make criminal the possession of what might be called propaganda for sexual acts which are in themselves unlawful.

[22] I shall return hereafter to the question when and in what circumstances it is acceptable in a free and democratic society to make criminal the possession of any written materials. It is sufficient to note at this point that I consider this the critical question in this case.

The Judgment Below

[23] The learned judge was at a substantial disadvantage as the accused was not, before him, represented by counsel. In this Court we have had, in the best tradition of the bar, the assistance on behalf of the accused of Mr. McKinnon, Q.C. and Mr. Peck, Q.C.

[24] In coming to his conclusion on subsection (4), the learned judge made certain findings which he called findings of fact:

1. Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process.

2. Children are abused in the production of filmed or videotaped pornography.

5. It is not possible to say which of the two foregoing effects is the greater.

6. "Mildly erotic" pornography appears to inhibit aggression.

7. Pornography involving children can be a factor in augmenting or reinforcing a pedophile's cognitive distortions.

8. There is no evidence which demonstrates an increase in harm to children as a result of pornography augmenting or reinforcing a pedophile's cognitive distortions.

9. The dissemination of written material which counsels or advocates sexual offences against children poses some risk of harm to children.

[25] On what, in the evidence, was referred to as "cognitive distortions", a concept I shall explain more fully hereafter, the learned judge said:

[21] There was no evidence led of any study demonstrating that "cognitive distortions" cause any significant increase in the danger that pedophiles pose to children. However, as was pointed out in the Carter et al study, a person who is prone to act out his fantasies will likely do so irrespective of the availability of or exposure to pornography. In my view, without reasonable supporting evidence, I should give only minimal weight to the "cognitive distortions" point.

[27] He noted that McCombs J. had not referred to the elucidation of the Oakes test by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 94 C.C.C. (3d) 289.

[28] On that footing, Mr. Justice Shaw said that it was appropriate to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of simple possession of child pornography.

[29] On the salutary effects, he said:

[34] ... The prohibition combats practices and phenomena which, at least arguably, put children at risk. These include: the use by some pedophiles of sexually explicit images in the grooming process leading to sexual relations with children; the abuse of children in the making of pornography and the preservation of that abuse in photographs or films; the confirmation or augmentation of cognitive distortions of some pedophiles; the incitement of some pedophiles to commit offences against children; and the advocacy or counselling of the commission of sexual offences against children.

[35] There are factors which go to the weight to be attached to the effectiveness of the prohibitions in combatting the foregoing practices and phenomena. There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that "mildly erotic" images are used in the "grooming process". Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime.

[30] On the question of detrimental effects, he said:

[36] I turn now to consider the detrimental effects. I start by repeating s. 2(b) of the Charter:

2. Everyone has the following fundamental freedoms:

. . .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

[37] Freedom of expression plays an important role in this case. The personal belongings of an individual are an expression of that person's essential self. His or her books, diaries, pictures, clothes and other personal things are intertwined with that person's beliefs, opinions, thoughts and conscience. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, dealing with the right of people to use the language of their choice, it was held that "freedom of expression" should be broadly interpreted. The court said, at p.749:

It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s.2(b) of the Canadian Charter and s.3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s.2 and to "freedom of conscience" and "freedom of opinion" in s.3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

[38] The court included "individual self-fulfilment and personal autonomy" within freedom of expression: (supra, at p.767). The same notion was articulated in R. v. Keegstra (1990), 61 C.C.C. (3d) 1 (S.C.C.) by Dickson C.J.C. at p.49:

Another component central to the rationale underlying s.2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit.

[39] The proportionality tests under s.1 of the Charter include a consideration of the fundamental values that underlie the Charter. In Keegstra, supra, Dickson C.J.C. said, at p.29:

... the balancing exercise in s.1 is not restricted to values expressly set out in the Charter.

[40] Dickson C.J.C. at p.29 cited the following passage from R. v. Oakes, supra, at p.346:

The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

[41] What weight will be given to these values will depend upon the particular circumstances. As Dickson C.J.C. said in Keegstra at p.29:

Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.

[42] One significant value underlying the Charter is the individual's reasonable expectation of privacy. It is well described in R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) per La Forest J., at p.254:

The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state: see Alan F. Westin, Privacy and Freedom (1970), pp.349-50. Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

[43] An important aspect of privacy is an individual's right of privacy in his or her own home. In the present case, the police entered Mr. Sharpe's home pursuant to a search warrant and seized his collection of materials alleged to be pornographic.

[44] The case law on freedom of expression reflects the Charter's concern for the right of privacy. R. v. Keegstra, supra, deals with the constitutionality of the Criminal Code ban on the wilful promotion of hatred against identifiable groups (s.319(2)). The prohibition expressly excluded "private conversations" and this exclusion was an important factor in the court (by a 4-3 majority) upholding the legislation. Dickson C.J.C. for the majority said, at p.56:

In assessing the constitutionality of s.319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual.

[45] Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, deals with a provision of the Canadian Human Rights Act which prohibits repeated communication by telephone of any matters likely to expose others to hatred or contempt. The constitutionality of the legislation was upheld by a 4-3 decision. Dickson C.J.C. for the majority dealt with the privacy point, at pp.936-37:

I do not disagree with the view that telephone conversations are usually intended to be private; it is surely reasonable for people to expect that these communications will not be intercepted by third persons. Moreover, in determining in Keegstra that the criminal prohibition of hate propaganda in s.319(2) of the Criminal Code is not constitutionally overbroad, I relied to an extent upon the fact that private communications were not affected. The connection between s.2(b) and privacy is thus not to be rashly dismissed, and I am open to the view that justifications for abrogating the freedom of expression are less easily envisioned where expressive activity is not intended to be public, in large part because the harms which might arise from the dissemination of meaning are usually minimized when communication takes place in private, but perhaps also because the freedoms of conscience, thought and belief are particularly engaged in a private setting. (underlining added [by Shaw J.])

[46] McLachlin J. for the minority also addressed the question of privacy. She said, at p.967:

The benefit obtained from prohibiting private conversations between consenting individuals is arguably small, since only those who are already receptive to such messages are likely to be interested in receiving them. On the other hand, the invasion of privacy may be significant. Without suggesting that prohibition of offensive telephone calls could never be justified, the fact that private communications are banned cannot but enhance the significance of the infringement of the rights of the individual effected by s.13(1) of the Act.

[47] R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.), addresses the constitutionality of the obscenity provisions of the Criminal Code. The court by a 7-2 majority upheld the obscenity provisions. Writing for the majority, Sopinka J. took account of the fact that the prohibitions did not touch the private use or viewing of obscene materials. He said, at p.166:

Fourthly, while the discussion in this appeal has been limited to the definition portion of s.163, I would note that the impugned section, with the possible exception of s-s.(1) which is not in issue here, has been held by this court not to extend its reach to the private use or viewing of obscene materials.

[48] I will now specify what I consider to be detrimental effects arising from the prohibition of simple possession of child pornography.

[49] First and foremost, the invasion of freedom of expression and personal privacy is profound. Further, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition also includes pedophiles who, instead of preying on children, use pornography for very private purposes, such as relief from their affliction by masturbation. As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account. The ban includes "mildly erotic" pornography, such as is included in s-s.(1)(a)(ii), although the evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children. As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nonetheless subject to criminal sanctions arising from mere possession. A magazine or a newspaper may contain some material said to be pornographic. Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal: R. v. Popert (1981), 58 C.C.C. (2d) 505 (Ont.C.A.). Purchasers of such publications will have to become their own censors.

[50] I turn then to weigh the salutary effects against the detrimental effects. In my opinion, the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition.

[31] He concluded that the detrimental effects to the possessor of such material by there being a crime of possession outweighs the benefit of the section in question.

The Evidence Below

[32] In the trial, a principal witness for the Crown was Detective N. M. Waters who, under her maiden name of Wolff, had given evidence before the Parliamentary Standing Committee on Justice and the Solicitor General in January 1993 and again in June 1993 when it considered "child" pornography. Her evidence before the learned judge on the nature and pervasiveness of such materials is not significantly different from that which she gave to the Committee. Having been accepted as an expert in the investigation of "child" pornography, Detective Waters began her evidence before the learned judge, thus:

Q What forms do child pornography take?

A It really is to the extent of what the person who has a sexual interest in children, whatever they want to create.

Q I'm just going to ask you to slow down, please.

A Sorry. Anything that a person who has a sexual interest in children, whatever they want to create. And what I've seen in my investigations and through search warrants that have been executed and material that has been seized by myself and other investigators, I have seen pictures of children engaged in sexual acts with either other adults or other children and they can consist of Polaroid shots --

Q Sorry. Pictures of children -- ?

A Engaged in sexual acts with either other children or with other -- with adults, both males and females. The pictures can be either Polaroid shots or [other] still pictures that have been taken with a camera and the developing has been done by the person who has taken the pictures. We have had other complaints from photo studios that have developed pictures and then turned them over to us which show children engaged in sexual activities.

I've also seen material that are contact sheets which would be by someone who is developing their own pictures and the contact sheets would have up to, say, 15, 20 pictures on the one sheet and then from there, they can develop them into larger pictures. They'll be quite small on the contact sheets. Where the children again --

Q Sorry. What are contact sheets again?

A A contact sheet is just one sheet with a series of photographs that have been taken by a person on a film and then from there they choose which pictures they're going to -- it would be like a photo studio would show you a sheet of many pictures and then they'd develop them further.

I've seen pictures that are taken with a video camera where there's videos of child pornography. I've seen videos which at the onset contain -- in one, there was WWF Wrestling at the beginning of the video and then in the middle was child pornography and towards the end, it was --

Q Sorry. If I can just stop you there, please.

A Yes.

Q So you're talking now about video cassettes?

A Video cassettes, yes, that's correct.

Q All right. And then you're talking about some -- and so those are, in other words, live action; is that correct?

A Live action where they involve children engaged in either sex acts with other children, engaged in sex acts with animals, where there is pictures of children that are nude and then in sadomasochistic poses where they're either tied up or bound or blindfolded and where the focus are the genitals. The children are spread-eagle so that shows the children exposed and would be child pornography under the definition. I have seen material where it is taken from magazines such as --

Q All right. If I can just stop you there.

A Yes.

Q You'd also mentioned an incident in which the material that was not the first thing that was on the video. Can you just describe what you mean by that and explain that?

A Yes, it was actually a detention where the material showed WWF Wrestling at the beginning and then as you got further into the video, there were images of the children engaged in sexual acts. And then towards the end, the same, children engaged in sexual acts and children -- very young children, pre-pubertal children.

I have also seen videos where they have re-copied eight millimetre film -- the -- 'cause most people don't have eight millimetre cameras or -- or projectors to play material back and it's now being put onto videos so they can be played in a video recorder or a VCR.

They -- the material is again -- other materials that I've seen with that is where they have taken the videotape, removed the tape, reversed it and then resealed the package so that it would appear that it was a new tape and -- with no material on it. And then when it was reviewed, it would appear to be blank because it was put on backwards. And when it's reversed again, the material as contained is child pornography.

I've also seen most -- more recently, written -- well, since I came there, written material where the -- there are very graphic stories of children engaged in sexual activities.

Some of the first written material on computer that I saw was a very violent story involving a young, teenage girl who is taken in by a male who then really keeps her hostage, engages in very brutal and cruel sexual acts with the child, having her bound and tied and -- it's quite graphic and quite horrific. And then at the very end of the story, which is a 50-page story that was sent over the Internet, the child is left to die. Also --

Q So if I could just stop you there.

A Yes.

Q There's a kind of -- you're on to written material now?

A Yes.

Q And the first, I take it, that you've described are what you describe as graphic stories involving sexual acts by adults upon children?

A Yes, and it's written -- this particular story is, of course, written in such a way that the child is starting to enjoy and wants to engage in this activity even though it -- it is as horrific as it is outlined.

Q Is that characteristic of these stories in general?

A Yes, not all of them are violent, but they are characteristic of the fact that the child will then appear that they want this or they instigated the relationship and that -- that the person was just doing the child a favour by advancing their sexuality by engaging in sex acts with the child.

I have seen material such as publications such as the North American Man Boy Love Association whereby they will have material which is written word but also erotic pictures of children nude and either posed in erotic poses. They will have erotic stories of children engaged in sexual activity with either other children or other adults.

The stories will also be in these publications, testimonials by persons who have been either convicted of offences or they state they have, of offences in relation to children and they're testimonials of the children they've engaged in sex acts with, and children -- pre-pubertal children as well. Also, in that publication and many others, have a similar vein, such as Paidika, which is a journal of --

Q Sorry. Just to stop you there.

A Yes.

Q If you could -- other than that, is there anything else in NAMBLA in terms of the -- the North American Man Boy Love Association publication that you wish to describe?

A Yes, they also -- they have, specifically in the October 1991 volume, they had a specific -- several articles, one titled "Staying Safe and Happy in a Man Boy" --

Q I'm going to ask you to slow down again, Detective Waters.

A Sure, sorry.

Q If you could perhaps follow His Lordship's pen and that of Mr. Sharpe and --

A It's October 1991 bulletin. It was titled "Staying Safe and Happy in a Man Boy Relationship". The article outlined to the -- the male adult or whoever was involved with the child, how to instigate the relationship with the -- with the child, where to store or not store material that would be considered child pornography, that the -- how the child, if they were -- that they could -- how they could instigate the relationship with the adult.

It really went into speaking to the child, how they could engage in sex with the adult. It also counselled the child not to speak to any authorities should they be questioned about their relationship with the adult. And then counsel the adult on how to -- I won't say get rid of, but to break off the relationship with the child when they no longer found them sexually exciting or stimulating.

In the same bulletin, there was an article on having consent formed by a child eight to 12 would go with their parents and the person who -- adult who wanted to engage in sex with the child would go before a judge and then the judge would determine whether or not this would be a beneficial relationship for the child. There's other publications. One --

Q Sorry. If I could just stop you there again.

A Sure.

Q In terms of the NAMBLA publication, if you could indicate overall their editorial point of view, what would that be?

A They say that they are both political and educational and work to support men and boys who have or desire sexual, what they term consensual sexual inter-generational relationship. And it goes on from there. It's in the front of most of the NAMBLA Bulletins.

[33] The Internet is now the chief means of distribution:

Q I wanted to ask you now about the means of distribution that you have encountered in your investigation of child pornography. In what ways is this information or this material distributed?

A Through investigations that I've been involved in and search warrants that have been executed. I have observed that the material has been distributed -- right now the -- the biggest or the largest volume of material is being distributed through the use of the Internet, through computers -- computer distribution. This can involve material that has been scanned from publications or pictures of children engaged in sexual activity.

We've seen the older child pornography publications that were produced in Europe and Asia that are now showing up on computer and being distributed on the computers through the Internet. The pictures are scanned, which means that they are changed into an electronic format and placed on disk -- computer disk.

THE COURT: Just slow down a little bit, please.

A Yes.

THE COURT: Yes?

A It's been an electronic format on disk and then can be distributed through the computer, either through -- which I stated earlier, through e-mail or chat rooms or ICQ.

THE COURT: Just hold on. E-mail --?

A Chat rooms or ICQ. I'm sure there's other methods, Your Honour, but I'm not a computer technical person so I can't tell you all of the methods that are used. Also, the material can be placed onto CD-ROMs which are another method of storing the material on a type of disk, computer disk. Also, material is stored on JAZ-drive and --

THE COURT: JAZ-DRIVE?

A J-A-Z.

THE COURT: Yes?

A It's a -- almost can store as much material as a computer hard drive. They -- they store volumes of material and can be hooked up to the computer separately and stored -- the material stored.

[34] She was asked to describe what she perceived to be the difficulties before the enactment of Bill C-128 in the investigation of matters concerning the material to which she had referred. She took the position that s. 163, the "obscenity" section, was essentially of little or no use in the suppression of the kinds of material to which she had referred.

[35] In justification of the section at issue, she testified:

And as a result of cases involving mere possession of child pornography, we have uncovered persons who have been sexually molesting children, who have been making child pornography, distributing child pornography, and selling child pornography.

We have been able in -- as a result, to get the children away from that abuse and to deal with the offenders to either attempt to change the behaviour or deal with them through the courts.

There has been a recent investigation in which a person was in possession of child pornography and came to light as the result of a Customs detention which is how a number of our investigations originate is through Customs detention of the material.

This person is -- has foster children in which they have been mentally retarded foster children who have been utilized in the production of this material. That investigation originated as a possession of child pornography offence.

* * *

Q Your last or one of your last examples, you mentioned NAMBLA and that leads me to ask you, has the inclusion of written material in the definition of child pornography assisted you and other investigators in dealing with the problem of child pornography?

A Yes, My Lord. We've had a number of cases in B.C. where we have obtained search warrants for child pornography, being the written word, being the NAMBLA publications, persons who have -- have the material detained by Customs. And we've obtained search warrants. And there have been convictions. Either guilty pleas or found guilty of possession of NAMBLA Bulletins and the --

THE COURT: Possession of --?

A NAMBLA, North American Man Boy Love Association Bulletin and other materials. And that has been deemed to be child pornography. The written material has also, in a number of recent investigations we've had, where there's been a male who came through the border, been convicted and sentenced about six months ago in which he had thousands of images -- pictures of children engaged in sexual activity as well as thousands of stories --

THE COURT: Thousands of stories?

A Of children engaged in sexual activities. Most of this stored on computer.

[36] To borrow the words of Brennan J., dissenting, in Osborne v. Ohio, 495 US 103, 109 L Ed 2d 98, 110 S Ct 1691 (1990), this is an argument that possession laws are an essential element of a successful enforcement strategy against production and distribution. The argument did not find favour with him and it finds little favour with me, nor is it at all clear that Parliament enacted subsection (4) for that purpose. I do not say that Parliament cannot enact (except by the use of the notwithstanding clause) legislation which infringes s. 2 for the purpose of making easier the detection and prosecution of activity which is incontrovertibly criminal. That question is not before us. What I do say is that it ought not to do so unless there is compelling evidence, preferably by reference to actual events, that there is no other practical solution. In R. v. Feeney, [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, the Supreme Court of Canada condemned police conduct although, in the circumstances there described, the police, in one view of the evidence, had no practical alternative.

[37] By so commenting, I am not impugning the good faith of Detective Waters in her testimony on this aspect. But she spoke in generalities and did not produce, for instance, the files on any of the matters to which she referred.

[38] The remainder of the witness's evidence in chief addressed the materials that were seized from the accused under two search warrants. I should make it clear here that what the witness was describing in the earlier part of her testimony is not specifically related to the charges now in issue.

[39] The second witness for the Crown was Dr. Peter Ian Collins, who was tendered by the Crown as an expert in forensic psychiatry, and particularly in sexual deviance and pedophilia. He did not give evidence, so far as I recall, before the Standing Committee. Dr. Collins is an assistant professor of the Department of Psychiatry, Faculty of Medicine, University of Toronto, and a forensic psychiatrist attached to the Toronto police service. The learned judge accepted him as an expert in the area for which he was offered as an expert witness and no issue is taken with that conclusion. He began by answering the question, "What is pedophilia?", to which he responded:

A Pedophilia is a form of paraphilia. Paraphilia very simply is the clinical term denoting sexual deviance. And there are -- are many --

Q I'd just ask you to keep an eye on His Lordship's hand.

A Okay. I will, sir. Paraphilia, there are probably over 30 distinct types of paraphilic behaviours described in the literature.

One of the eight more common types that's described in the Diagnostic and Statistical Manual of Mental Disorders which is a standard nomenclature or descriptor of all forms of emotional illness, which is published by the American Psychiatric Association, pedophilia is listed as -- as a more common form.

By definition, it's the erotic attraction or the sexual attraction to pre-pubescent children. Now, having said that, children reach puberty at various ages. So to say it's 12 or 13 or 14, it's debated as to what the cutoff is. It really is situation specific. There are two sub-types of pedophilia described. The first one is known as hebephilia.

THE COURT: Just a moment. How do you spell that?

A H-e-b-e philia. Some people call it hebepedophilia. Hebe being the root word in Ancient Greek meaning juvenile. And these are men who have the erotic attraction to children who have reached puberty or who are in early adolescence. The other sub-type is referred to as an infantiphilia and these are men who are erotically aroused to children who are under age five.

[40] Because the Crown relies heavily on the evidence of Dr. Collins, which as Crown Counsel noted below is essentially the same as the evidence accepted by the learned trial judge in Ontario (Attorney General) v. Langer, supra, I must set it out in some detail. The gist of the evidence is that pornography in which the subject matter is young persons is reprehensible and dangerous in three ways:

1. it reinforces cognitive distortions;

2. it fuels the sexual fantasies of those who possess it;

3. it is used by paedophiles in what has been called "grooming children".

[41] I shall explain each of these in detail.

1. Reinforcing Cognitive Distortions

[42] This phrase has, to me, an ordinary meaning - to accept as fact that which is not so, e.g. to believe the earth does not move. In the jargon - using that word in its correct and not pejorative sense - of psychiatrists, the meaning, as I understand Dr. Collins, goes beyond factual issues into issues of morality, and issues said to be of "fact" but which may be issues of opinion. Thus, Dr. Collins testified:

A Yes. Pornography is important in one aspect of the way that pedophiles think. Pedophiles have what we term cognitive distortions; cognitive distortions regarding their sexual contact with children. What are cognitive distortions? They're the rationalizations and the justifications that these people have for their deviant behaviour. Another way of putting it is that they are offence-facilitating beliefs.

The term cognitive distortion is a term that we use in clinical forensic psychiatry that covers a variety of ways that a pedophile thinks, including the denial and minimization of the harm that they cause to children. Cognitive distortions also are a way of shifting the responsibility towards the child and they have various attitudes and beliefs which are pro-offending in nature.

Q What do you mean by that?

A Well, they will believe that children actually want sex with adults and that if a child asks questions about sex or sexual issues, it's an invitation for the pedophile to have sexual contact with them. They will harbour the belief that sexual contact with children enhances the relationship between the adult and the child. They'll also, as part of these cognitive distortions, tell you that well, doc, it was done in ancient Greece, so it's society's problem, modern day society's problem that sexual contact is not allowed. Or, it was done among other societies.

What it is is a way of validating in their own mind the fact that what they do with children is okay. Not all pedophiles have cognitive distortions, they may just minimize the harm. But again, it's a basic tenet in treating pedophiles because the more ingrained, the stronger these cognitive distortions are, the more treatment-resistant they are. It's intriguing, because they almost reach a level where -- well, it's not delusional, but their thinking is so bizarre when it comes to their contact, their sexual contact with children that, despite any evidence to the contrary, they won't believe it. To them, sexual contact with children is the most important thing for them and they've managed to shape their thinking processes to convince themselves that absolutely no harm is done.

Now, cognitive distortions can be held individually by a pedophile but over the past number of decades, organizations have sprung up, organizations of pedophiles that advocate sex with children and what happens is, is when they see other people who belong to these organizations or subscribe to the magazines that some of these organizations put out, it's another way of, for them, gaining acceptance and status and trust and more importantly, psychological support.

An example of such an organization is the North American Man Boy Love Association. They support and actively seek out changes to the legislation pertaining to sexual contact with children and they will publish -- they publish a bulletin and this bulletin follows the models of similar organizations like the Journal of Pedophile Information Exchange that came out of England in the 1970s. Typically there will be photographs of boys which are erotic but not pornographic.

and later, in cross-examination:

Q What I mean is could something be a cognitive distortion in one society yet not be a cognitive distortion in another society?

A I don't know. I'm not -- I couldn't answer that. Certainly one of the defences that pedophiles will tell me is that in certain societies in, let's say the Philippines or Sri Lanka, that it's generally accepted that sex with children is okay and is more tolerated, but then again, because it's not as enforced, it really just fits in with the cognitive distortions that these North American or European men have.

Q Well, I was thinking, say, in terms of the Filipinos or Sri Lankans.

A I just answered that, sir.

Q So it might not be a cognitive distortion?

A Oh, I believe they are cognitive distortions. I believe that the people, the citizens of the Philippines don't want their children to be sexually abused in the same way that the people of North America or Europe don't want their children to be sexually abused.

Q So to the extent that you can determine, cognitive distortions are not relative; they are the same throughout all societies?

A I think to -- well, cognitive distortions are the thinking that the men have. It's to describe the thinking processes of the pedophiles, not the thinking processes of the societies.

[43] In cross-examination, he said then:

Q You don't know if it's a cognitive distortion?

A I think that it depends who believes it. If it's -- depends on age-appropriate sex or if it's sex with adults. I mean, if it's told to me by a pedophile as an explanation why he should be allowed to have sex with a pubescent male, then that's a cognitive distortion. If it's told to me by an adolescent male who is dating and he's beginning to have exploratory sex with an age-appropriate individual, then it wouldn't be a cognitive distortion.

* * *

Q Now, in this situation, can you really say that the pedophile is targeting the boys or that they both seek out each other?

A No, it's the pedophile's wish to encourage the behaviour, but indeed as the adult who is responsible, they're the one who's seeking out the contact.

Q So the boys in this case are not responsible.

A I believe that the responsibility is more so on the shoulders of the pedophile.

Q Do you accept that it could be a shared responsibility?

A No, because I don't believe that, in the same way with girls, we don't want our -- because the argument has been made that boys should be allowed to express themselves sexually. We don't seem to encourage our 14, 15 and 16-year-old daughters to sleep with 65-year-old men. Why should we do so with our 14, 15, 16-year-old sons?

Q Do you believe that there is basically no difference between boys and girls in terms of relationships with adults?

A I don't believe that adults should have sexual relationships with either boys or girls.

[44] If Dr. Collins had limited his evidence on this point to children, I would have no difficulty with it. To believe that a child could not only not be harmed by premature sexual conduct, but also take pleasure in it, seems to me an absurdity, and, therefore, a "cognitive distortion". But to believe that sexual congress between an adolescent and an adult (who may only be eighteen) may be a good thing or, at least, is not an unmitigated evil, is not, in modern Canada in which many adolescents, by their own choice, are not chaste, a "cognitive distortion". I may think it would be better if they were, but that is a matter of morality not reality.

2. Grooming

[45] What Dr. Collins said was this:

Q Now, directing your attention specifically to child pornography, is child pornography used by pedophiles in a way that puts children at risk?

A Most definitely.

THE COURT: Just a moment. Yes? Yes, go ahead.

A Well, there's a grooming process involved with pedophiles. Most pedophiles, and I hate the term, but it's there, most pedophiles are seductive in their approach to children. And in actuality, they perceive their selfish desire for sexual gratification as being healthy for the child.

THE COURT: Yes?

A There are various stages to this grooming process. The first stage has been described as the targeting stage. Pedophiles seem to have a knack for determining what children may be more likely to be victimized. Very often, they'll target street children or children from dysfunctional families of origin.

The next phase is what they -- what we -- is termed in the literature the non-sexual touching stage. In this stage, the pedophile will touch the child and it may be sexual for them but it really is a non-sexual contact which, if they're caught at this stage, they can easily explain as being a mistake.

What they're doing is testing the child to see as to whether they can go further in terms of the touching. So it may be an accidental touching of the buttocks or rubbing their genitals up against the -- the thigh.

Or wrestling and it seems like pedophiles like to wrestle in their underwear with kids. I've been involved in all too many cases of that. So if they're interrupted or if they're discovered or if there is disclosure, the pedophile will explain that it was just an innocent thing.

But also, at this non-sexual touching stage, pedophiles will introduce the subject of sex, try and "normalize" it - I use that in quotation marks - for the child, try and demystify it using their own pedophilic prejudices. And in part of that non-sexual touching stage when they introduce the subject of sex, they will use pornography.

And we're not talking all pedophiles, but certainly, I've seen in common that many do use this. Now, it will either be adult age-appropriate pornography or child pornography. Really, what they're trying to do is lower the inhibitions of the child, try and convince them that sexual contact is healthy, other children do it.

[46] Modern adolescents are in many parts of this country taught about sex in school. Some are no doubt eager to begin, and others not so eager. But they are not generally ignorant. How could they be in light of modern films and television which may leave something to the imagination but not a great deal?

[47] This proposition of Dr. Collins put forward as justification for the legislation encompasses not only the proverbial dirty old man approaching a ten or eleven-year-old, but also the twenty-year-old bent on seducing a seventeen-year-old girl and using a copy of the Kama Sutra or any one of a number of salacious magazines for the purpose.

3. Fuelling Sexual Fantasies

[48] Dr. Collins said, in part:

But essentially it's another way of describing what we've pretty well known for many years in clinical medicine, that many sexually deviant men are collectors. Now, there are different forms of collateral material. And the most common form and the one which seems to apply in this case is erotic collateral material.

Q And what is that?

A Well, erotica is defined as anything which serves a sexual purpose for a given individual. And what may be erotic for one person may be viewed as totally benign, and you know, not erotic for another person.

THE COURT: Hold on for a moment. Yes, thank you.

A Erotica doesn't necessarily mean pornography. Photography or photographs, I should say, of fully clothed children, if they fall within the target age group to which the pedophile is attracted to, can be erotic and arousing to a pedophile. And I have brought some examples of that which I can show the court later.

So on a continuum, it can -- erotica can be pictures of fully-clothed children to partially-clothed children, to at the far end, what would be considered pornographic. Obviously, the most highly valued material in the collection of a pedophile are the ones that are considered to be pornographic.

Pedophiles will collect pictorial images of children. They'll collect writings which have pedophilic themes. Now, these writings and pictures can either be commercially-produced or they can be homemade. But the purpose is the same; it's to fuel their erotic fantasies.

[49] Here, Dr. Collins was addressing what he refers to as "collateral material".

[50] Later, he said:

Q In addition to the use of child pornography in grooming of victims, is there any other way in which child pornography is harmful?

A It is and there has been some literature, very good literature written about how child pornography will incite pedophiles to reoffend.

[51] He then referred to an article by Dr. William Marshall, who did give evidence before the Standing Committee, which contained this passage:

Slightly more than one third of the child molesters and rapists claim to have at least occasionally been incited to commit an offense by exposure to one or the other type of the sexual materials specified in this study. For some of them, the role of sexual depictions as an instigator to offend was accidental, or at least the stimuli were not deliberately sought out to [incite] them to offend. However, amongst those child molesters who were incited, 53% of them deliberately used the stimuli in their typical planned preparation for offending, as did 33% of the rapists who were incited to offend by these materials. The demonstration of relationships between the use of sexual stimuli as instigators to offend, the strength of deviant sexual interest ... and the rates of masturbatory activities, strengthens the conviction that child molesters (in particular) are preoccupied with deviant thoughts that unfortunately appear to mediate a high rate of sexual offending.

* * *

Clearly a proportion of rapists and child molesters use sexually explicit stimuli to incite both deviant sexual fantasies and deviant sexual acts.

[Emphasis mine.]

[52] On the emphasized passage, I comment that, if accepted, it could provide, and perhaps should provide, justification for clamping down on the sale of pornographic movies, the participants in which are over eighteen and which I understand are freely available on Granville Street.

Other Evidence

[53] In addition to the viva voce evidence to which I have referred, the learned judge had before him:

Exhibit 6: Hearings of the Standing Committee on

Justice and the Solicitor General [in 1993]

Exhibit 21: Report by W.L. Marshall, Ph.D. entitled

"The Use of Sexually Explicit Stimuli by

Rapists, Child Molesters, and Nonoffenders"

Exhibit 22: Report entitled "Use of Pornography in the

Criminal and Developmental Histories of

Sexual Offenders"

[54] In this Court, a plethora of other material was put before us, including, on behalf of the Crown:

Report to the Minister of Justice of the Special Committee

on Hate Propaganda in Canada (The Cohen Report)

(Ottawa: Queen's Printer, 1966)

Excerpts from Report of the Committee on Sexual Offences
Against Children and Youths (The Badgley Report)

(Ottawa: Queen's Printer, 1984)

Excerpts from Report of the Special Committee on Pornography
and Prostitution (The Fraser Report) Vol. I and Vol. II

(Ottawa: Queen's Printer, 1985)

United States Senate Report 104-358 in Respect of the Child

Pornography Prevention Act 1996 (The Senate Report)

(U.S. Senate, August 1996)

United States Legislation on Child Pornography -- 18 U.S.C.

Chapter 110 -- Sexual Exploitation and Other Abuse of

Children, sections 2251-2252A and section 2256

Child Pornography Prevention Act 1996,

Public Law 104-208 110 Stat. 3009-26

Protection of Children from Sexual Predators Act 1998,

Public Law 105-314 112 Stat. 2974

United Nations Declarations and Conventions:

Convention on the Rights of the Child (1989)

Declaration of the Rights of the Child (1959)

Excerpts from Implementation Handbook for the Convention on

the Rights of the Child (Hodgkin, R. and Newell, P.)

(UNICEF, 1998)

Australian Legislation -- Child Pornography:

Excerpts from State and Territorial Legislation

Classification (Publications, Films and Computer Games)

Enforcement Act 1995 No. 63 -- New South Wales, Australia

Classification (Publications, Films and Computer Games)

Enforcement Act 1995 No. 90 -- Victorian Parliament,

Australia

New Zealand Legislation -- Child Pornography:

Films, Videos and Publications Classification Act 1993, No. 94

-- Statutes of New Zealand 1993

English Legislation Addressing Child Pornography:

Protection of Children Act 1978

Criminal Justice Act 1988 s. 160

Criminal Justice and Public Order Act, 1994 s.84-s.86

Foreman, J. "Can We End the Shame? -- Recent Multilateral

Efforts to Address the World Child Pornography Market"

(1990) 23 Vanderbilt Journal of Transnational Law 435

Lanning, K.V. "Cyber 'Pedophiles': A Behavioural Perspective",

1998 11 (4) The APSAC Advisor 12

Belsey, M. "Commercial Sexual Exploitation of Children: The

Health and Psychosocial Dimensions" (New York: World

Health Organization, 1996) prepared for the United

Nations Stockholm 1996 World Congress Against Commercial

Sexual Exploitation of Children

Forde, P. and Patterson, A. "Paedophile Internet Activity"

(1998) 97 Trends and Issues in Crime and Criminal Justice

1 [Australian Institute of Criminology]

Lederer, Laura

National Legislation on and International Trafficking in

Child Pornography (1996)

- Centre on Speech, Equality and Harm

University of Minnesota Law School

Debates of the Senate, (June 16, 17 & 23, 1993),

34th Parliament, Vol. 134, No. 155, 156 & 159

Excerpts of the Proceedings of the Standing Senate Committee

on Legal and Constitutional Affairs (June 21 & 22, 1993 -

Issues #50 & 51)

Irish Child Trafficking and Pornography Act, 1998

[55] We also had cited to us, as I have already indicated, the judgment of the United States Supreme Court in Osborne v. Ohio, supra, which addressed a statute of the State of Ohio making criminal the possession of "child pornography".

[56] I shall say no more about it except this: that, to the extent to which, if at all, American authorities on their Constitution, are of value in Canada, I agree with the animadversions of Brennan J. on making "possession" a crime.

[57] As to all the other material, I take from it that other countries are concerned with the sexual exploitation of children and have attempted to legislate with a view to diminishing such exploitation. Nonetheless, no one appears to know how much there is of it, or whether it is more prevalent now than heretofore. If, as was suggested in argument, what is happening is that much of the material emanates from so-called third world countries whose children are being exploited for the delectation of paedophiles and hebephiles, then we might ask ourselves how it is that these countries permit their young people to be so exploited. My own view is that the principal underlying cause is economic. Some third world countries are desperately poor. Others are not poor, but their wealth is so unevenly distributed that a large part of the population has a grim choice - starvation or exploitation.

The Position of the Parties in this Court

[58] On this appeal, the Crown's position is set out in what learned Crown counsel called an overview of the appellant's position, thus:

26. The appellant submits that the trial judge's ruling on the voir dire resulting in the dismissal of the two possession counts is erroneous in a number of respects. First, he failed to give adequate weight to the surpassing importance of Parliament's objective to protect all children from the evils of child pornography. Second, he failed to take into account the fact that the nature of the expression is not only offensive, disturbing and harmful, it is also only tenuously connected, if at all, to the promotion of freedom of expression principles. Further, the tenuous connection it does have to any sense of individual self-fulfilment is at a most base and prurient level. The jurisprudence recognizes that this consideration permits restrictions on freedom of expression to be more readily justified. Third, in placing as much emphasis as he does on an individual's right to expression of their individuality and to a right to privacy, the trial judge neglected to consider how disconsonant the exercise of those individual rights, in this context, is with other equally important values and principles in a free and democratic society. More specifically, he neglected to consider how inimical the possession of all child pornography, not just the sexually explicit kind which the trial judge found to be beneficial to some users, is to the dignity, autonomy and privacy of the children directly abused and exploited in its creation and of all children put at risk through its use. Fourth, the trial judge erred by effectively requiring empirical proof in areas which are simply not susceptible to proof by traditional or scientific means.

27. The trial judge found as a fact that children are placed at risk by the use of child pornography by paedophiles in the grooming process. He found as a fact that children are abused in the creation of child pornography. He found as a fact that some kinds of child pornography incite some paedophiles to commit offences against children. On the basis of these findings alone, given the important societal objective of protecting children, the trial judge should have found that s. 163.1(4) is a reasonable limitation prescribed by law. In finding otherwise, the trial judge set the balance between the rights of the individual and the rights of children and of society incorrectly.

[59] I do not understand counsel for the Attorney General of Canada to take any significantly different position and, with all respect, Mr. Danson and Ms. Gordon, who appeared for intervenors supporting the Crown's position, do not appear to me to have had anything significantly different to say from what was said by counsel for the Crown. Mr. Staley, for his client, did have something different to say and I shall address that later.

[60] The respondent has made here a much broader attack on s. 163.1(4) than was made in the court below. Counsel, on his behalf, submitted the impugned provision was unconstitutional, not only on the basis of an infringement of s. 2(b) of the Charter but also on the basis of a violation of ss. 7 and 8:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

[61] They do not assert that Parliament could not craft on this subject a provision which would pass constitutional muster. To put it another way, they do not say that protecting children from sexual exploitation is not a pressing concern. They say simply that this section fails the proportionality test.

[62] The argument of Mr. McAlpine, for the British Columbia Civil Liberties Association, was to the same effect, although perhaps with somewhat different emphasis. I quote from his factum:

4. ... the Crown seeks to justify the proscription of all sexual images of persons under age 18, including those that did not involve the commission of harm, criminal conduct, or even the use of a real child. The Crown asserts that the possession of images of any sexual activity of persons under 18, including legal consensual sexual activity of persons aged 14 to 17, may induce criminally exploitative behaviour in pedophiles. Against this line of argument, we respectfully submit that a free society cannot measure the allowable range of expressive freedom by reference to the appetites of the most deviant persons in our community. This has long been an accepted truth in connection with offences of production, distribution, publication and sale of expressive materials, and it should have even greater force in the context of an offence of mere possession.

5. The prevention of sexual violation or exploitation of children and youth is a state objective of pressing and substantial importance. For these reasons, provisions that make it an offence to create, distribute or simply to possess pictures that constitute a record of the actual sexual exploitation of a child or youth are a reasonable limit on freedom of expression that can be demonstrably justified in a free and democratic society.

* * *

10. The central issue in this appeal is the constitutionality of the offence of simple possession created by s. 163.1(4). The BCCLA is not aware of another Canadian criminal law, either current or historical, that provides for a sentence of incarceration for the mere possession of expressive material. ...

11. The effect of criminalizing the simple possession of expressive materials is profound: it results in the violation of all section 2(b) freedoms at once: thought, belief, opinion, and expression. Further, it necessarily entails a profound invasion of personal privacy.

12. State efforts to coerce individuals into holding or abandoning thoughts, beliefs, or opinions -- no matter how evil or repugnant they may be if acted upon -- are the hallmarks of a totalitarian society and antithetical to a free and democratic society. For this reason, simple possession offences of expressive material should only be upheld in exceptional circumstances where the law in question is carefully tailored to capture only expressive material that is necessary to the attainment of an overriding state purpose.

13. ... the constitutional infirmities of section 163.1 lie in the breadth of the definition of "child pornography" when coupled with the extraordinary nature of a simple possession offence.

14. ... the definition of "child pornography" in subs. 163.1(1) constitutes an overly broad limitation on constitutionally protected rights and freedoms in the context of subs. 163.1(4) in at least five respects.

[1] First, paragraph 163.1(1)(a) is overly broad by capturing the possession of visual images of the sexuality of children and young persons that are purely the products of their creators' imaginations and involve no children or youth in its production. This includes images which are self-authored and never disseminated.

[2] Second, paragraph 163.1(1)(a) overreaches by including all pictures that record explicit sexual acts involving youth or young adults who are or appear to be aged 14 to 17. Many sexual acts engaged in by persons who are or appear to be aged 14 to 17 are perfectly legal and are not defined as sexual exploitation by the Criminal Code. This overbreadth even extends to capture possession of pictures of one's own legal sexual activity.

[3] Third, paragraph 163.1(1)(b) is overly broad by capturing written or visual representations, including those which are self-authored, that are purely the product of a creators' imagination. It is submitted that is not possible to advocate or counsel the commission of a sexual offence involving children or youth without communicating that message to others.

[4] Fourth, paragraph 163.1(1)(b) is overly broad in not explicitly exempting legitimate debate concerning the age of consent to sexual activity.

[5] Fifth, paragraph 163.1(1)(b) discriminates on the basis of sexual orientation by criminalizing the advocacy or counselling of only one kind of consensual, non-exploitative, non-commercial sexual act involving persons aged 14 to 17, namely, anal intercourse, a sexual act of particular significance to gay men and youth.

[63] For the reasons I have given earlier, I do not consider that s. 163.1(1)(b) has the effect which Mr. McAlpine asserts although I agree with him that Parliament intended that effect.

The Learned Judge's Findings of Fact

[64] In their factum, counsel for the respondent says of the learned judge's findings

22. The factual foundation of the learned trial judge's decision is found in nine findings of fact [para. 6, supra [para. 24 of these reasons]], which he made after considering the testimony of two witnesses and empirical studies. These findings of fact are entitled to some deference by this Court. The Respondent respectfully submits that the Appellant has not demonstrated, in its Factum, any basis for interfering with them.

23. Generally an appellate court will not interfere with a trial judge's findings of fact unless they are unsupported by the evidence or based on clear error. However, in RJR MacDonald Inc. v. Canada Attorney General), [1995] 3 S.C.R. 199 at pp. 286, 289; 100 C.C.C. (3d) 449 at pp. 506, 508, La Forest J. (speaking for five of nine judges) distinguished between "adjudicative" and "legislative" facts:

... the privileged position of the trial judge does not extend to the assessment of "social" or "legislative" facts that arise in the law-making process and require the legislature or a court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour. ... I conclude that an appellate court may interfere with a finding of a trial judge respecting a legislative or social fact in issue in a determination of constitutionality whenever it finds that the trial judge erred in the consideration or appreciation of the matter. As applied to these cases, I find that, apart from his specific findings with respect to the credibility of witnesses and the probative value of reports, Chabot J.'s factual findings concerning the connection between tobacco advertising and consumption are entitled to minimal deference by this court. (emphasis [of counsel])

24. McLachlin J. (speaking for three judges) was more qualified, ruling that a "lesser degree of deference" may be required where the trial judge has considered social science and other policy oriented evidence. Her Ladyship added that appellate courts "should remain sensitive to the fact that the trial judge has had the advantage of hearing competing expert testimony first hand" (S.C.R., p. 334; C.C.C., p. 541).

[65] With respect, it does appear to me that the so-called "legislative" facts, insofar as they are based on what is broadly called social science, are more a matter of opinion than fact.

[66] Furthermore, social scientists and psychiatrists like Dr. Collins are not men from Mars observing the world and recording what they see from a vantage point of pure detachment. Nor, for that matter, are judges. To a greater or lesser degree, we all view the world encumbered by our own education, values and experiences. In the word "experience", I include, for it is perhaps the most powerful of experiences, what we have read.

[67] With one exception, I do not find it necessary to agree or disagree with the learned judge's findings, but I do agree with what he said in the second of his findings, simply because I hold the opinion that it is morally wrong to use children, as I define that term, for sexual purposes, in which I include the production of erotica.

The Legislative History of Section 163.1

[68] On the 13th May, 1993, Parliament gave first reading to Bill C-128 of the Third Session of the Thirty-fourth Parliament, 40-41-42 Elizabeth II, s. 2 of which was:

2. The said Act is further amended by adding thereto, immediately after section 163 thereof, the following section:

163.1 (1) In this section, "child pornography" means a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity.

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(3) Every person who distributes or sells any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(5) It is not a defence to a charge under subsection (2) that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).

[69] On the 3rd June, 1993, Bill C-128 was referred to the Standing Committee on Justice and Solicitor General. Before the government introduced Bill C-128, there had been proceedings before the Standing Committee on Justice and Solicitor General concerning so-called child pornography and, indeed, a private member's bill had been introduced.

[70] There are significant differences between the original proposal and the statute which was enacted one month later:

1. Subsection (1), the definition section, was amended in two ways:

(a) the words beginning "that shows" down to "explicit sexual activity" became subsection (i) and these words were added as subsection (ii): "[or] the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;"

(b) subsection (b), which relates to "any written material or visual representation that advocates or counsels sexual activity...." was added.

2. Subsection (3), which began "Every person who distributes or sells any child pornography ...", became "Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography ...".

I propose (a) to address Mr. Staley's submission, which is founded on the preamble; (b) to comment on the words of s. 1; and (c) to consider whether any limit on possession of expressive materials can be justified in a free and democratic society.

(a) Preamble

[74] This is the preamble:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

[75] Mr. Staley says that the Supreme Court of Canada has said in such cases as Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, 88 D.L.R. (4th) 193, that the entrenchment of the rule of law in the preamble is a recognition of the fact that it is a cornerstone of our form of government.

[76] Therefore, he submits, it follows that the other branch of the preamble must also be a cornerstone of the Charter and cannot be ignored in its interpretation.

[77] In his words:

20. The principles that recognize the "rule of law" are more readily understood and applied than the principles that recognize the "supremacy of God". However, the complexity of understanding and applying the principles that follow from the recognition of the supremacy of God should not cause it to be discarded as vague or unhelpful. Both concepts point toward our philosophical and legal tradition, which upholds objective truth and moral standards.

* * *

22. EFC and Focus believe that religious principles and beliefs have found expression in social beliefs about the sanctity and protection of human life, including the protection of children and the special duties that we, as adults, owe to children as a vulnerable group. Put differently, the social goal of protecting children in Canadian society has developed from the principles and beliefs of the religions that have shaped Canadian society. These principles also have become an integral part of our civil and criminal law. As the Law Reform Commission of Canada stated:

"... law faithfully reflects one of society's traditional attitudes. Our society recognizes that morally, religiously, philosophically, human life merits special protection. This recognition of life's fundamental importance has often been expressed by the concept of the sanctity of human life".

Law Reform Commission of Canada, Working Paper No. 28, "Euthanasia, Aiding Suicide and Cessation of Treatment", (1982) at p. 3.

23. Most major religions regard children as treasures, or as sacred trusts, which warrant vigorous protection from all harm, including the physical, emotional and sexual abuse which, on the evidence before Shaw J., results from the production, dissemination and possession of child pornography.

[78] I accept that the law of this country is rooted in its religious heritage.

[79] But I know of no case on the Charter in which any court of this country has relied on the words Mr. Staley invokes. They have become a dead letter and while I might have wished the contrary, this Court has no authority to breathe life into them for the purpose of interpreting the various provisions of the Charter.

[80] See Everywoman's Health Centre Soc. (1988) v. Bridges (1990), 54 B.C.L.R. (2d) 273, 62 C.C.C. (3d) 455, in which an argument similar in import to that of Mr. Staley, although not directly founded on the Charter, was rejected by this Court. The words of the preamble relied upon by Mr. Staley can only be resurrected by the Supreme Court of Canada.

(b) Section 1

[81] This is section 1:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[82] The clause which begins "subject only to" contains twenty words, but the critical words are an adverb, "demonstrably", and three adjectives, "reasonable", "free" and "democratic". The trouble with adjectives and adverbs is that their meaning is elastic to a far greater degree than is the meaning of a verb or a noun. Capable draftsmen, whether of statutes or private instruments, avoid them.

[83] "Reasonable" is a word which is used in the law in many different contexts. We have, in the law of negligence, the "reasonable man", in the arrest and warrant sections of the Code, "reasonable grounds" or "reasonable belief", and in the criminal law, "reasonable doubt", the proper explanation of which to a jury still defies a satisfactory solution, perhaps 150 or 200 years after it first came into common legal use in that context.

[84] In the present context, I take "reasonable" to mean founded in reason. Such a definition requires one to remember that, on some matters, there may be more than one opinion, none of which is properly characterized as unreasonable.

[85] As to "demonstrably", the dictionary meaning of the adjectival form is: "1. Capable of being shown or made evident; occas. = Evident (obs.). 2. Capable of being proved conclusively 1551." (Shorter Oxford English Dictionary, supra, at 517).

[86] As to "free and democratic", they are words that mean whatever one chooses to make them mean. None of us is truly free. We are all hemmed in by innumerable laws, many of them excessively busybodyish, and by social pressures. Judges, for instance, are severely limited in their rights of expression under s. 2 by the Canadian Judicial Council and no one has argued that the limits so imposed are not within s. 1.

[87] As to "democratic" we are not and never have been a democracy, using the word as Aristotle used it.

(c) Whether limit on possession can be justified

[88] In paragraph 10 of his factum, Mr. McAlpine remarked:

The BCCLA is not aware of another Canadian criminal law, either current or historical, that provides for a sentence of incarceration for the mere possession of expressive material.

[89] But there was such a law during the First World War. By an order in council promulgated under the War Measures Act, 1914, entituled "Prevention of Circulation of Objectionable Matter" (see Statutes of Canada, 1919, lxviii):

1. Whenever in this Order the expression "objectionable matter" is used, it shall be construed to mean and include:-

(a) Any adverse or unfavourable statement, report or opinion concerning the causes of the present war or the motives or purposes for which Canada or the United Kingdom of Great Britain and Ireland or any of the allied nations entered upon or prosecutes the same, which may tend to arouse hostile feeling, create unrest or unsettle or inflame public opinion;

(b) Any adverse or unfavourable statement, report or opinion concerning the action of Canada, the United Kingdom of Great Britain and Ireland or any allied nation in prosecuting the war;

(c) Any false statement or report respecting the work or activities of any department, branch or offices of the public service or the service or activities of Canada's military or naval forces, which may tend to inflame public opinion and thereby hamper the Government of Canada or prejudicially affect its military or naval forces in the prosecution of the war;

(d) Any statement, report or opinion which may tend to weaken or in any way detract from the united effort of the people of Canada in the prosecution of the war;

* * *

2. (1) No person shall, unless with lawful excuse or authority, the proof of which shall lie on him, speak, utter, write, print, publish, post, deliver, receive or have in his possession or on premises in his occupation or under his control, any statement, opinion and report or any letter or other writing or any newspaper, tract, periodical, book, circular or other printed publication or any photograph, sketch, plan, model, record or other representation, containing or consisting of objectionable matter.

[Emphasis mine.]

[90] In the Second World War, the Regulation was different (Canada Gazette, 1940, p. 2226):

39. No person shall

(a) spread reports or make statements intended or likely to cause disaffection to His Majesty or to interfere with the success of His Majesty's forces or of the forces of any allied or associated powers or to prejudice His Majesty's relations with foreign powers;

(b) spread reports or make statements intended or likely to prejudice the recruiting, training, discipline, or administration of any of His Majesty's forces; or

(c) spread reports or make statements intended or likely to be prejudicial to the safety of the State or the efficient prosecution of the war.

(a) intended or likely to cause disaffection to His Majesty or to interfere with the success of His Majesty's forces or of the forces of any allied or associated powers, or to prejudice His Majesty's relations with foreign powers;

(b) intended or likely to prejudice the recruiting, training, discipline or administration of any of His Majesty's forces; or

(c) intended or likely to be prejudicial to the safety of the State or the efficient prosecution of the war.

[91] Thus, in 1940 in even more fearful circumstances, simple possession of subversive materials was not made a crime and, indeed, on 17th January, 1940 (Canada Gazette p. 2295) it was enacted that it was a defence to any prosecution under those Regulations to prove that the accused intended in good faith merely to criticize or to point out errors or defects in the Government of Canada.

[92] Other than the 1914 order in council, I know of no Canadian legislation except the section here in issue which has ever made the simple possession of any expressive material a crime. It is not a crime to possess expressive material which advocates genocide, it is not a crime to possess expressive material which is seditious, and it is not a crime to possess that which is obscene.

[93] Since the great case of Entick v. Carrington (1765), 2 Wils 275, [1558-1774] All E.R. Rep. 41, 19 State Tr. 1029, a man's personal thoughts, opinions, expressions and beliefs as disclosed by his books and papers have been thought immune from intrusion.

[94] There is good reason for such freedom from intrusion being a profound constitutional value. This has been the century of the Gestapo and the KGB - of a state encouraging betrayal by children of their parents to the authorities, of smashing down doors and burning books, all in the name of some concept of the greater good. Even if the possession of material which advocates or counsels crime may lead to the inference that the possessor has bad thoughts and thence to the conclusion that he might or even will commit the crime thus advocated, it is not within our political ethic to make the possession itself a crime. It is that notion which goes deep in our history which is at the root of the requirement that proof of treason requires proof of an overt act.

[95] I conclude, therefore, that legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny.

[96] In so concluding, I am not rejecting the concession of counsel that the protection of children from sexual exploitation is a pressing and substantial concern of our society. I am saying that some other way than making simple possession of this sort of material a crime ought to be found to attack it.

The Tests to be Applied

[97] If I am wrong in this conclusion, and that it is legally possible in a free and democratic society to make simple possession of expressive materials a crime, then the broad issue in this case is whether the dangers which Crown counsel asserts the evidence in this case "demonstrates" are so grave as to warrant Parliament doing what it has done here.

[98] In R. v. Keegstra, supra, at issue was this provision, at 715:

319. ...

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2)

(a) if, he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

[99] Of s. 1, Dickson C.J.C. said, at 736:

Obviously, a practical application of s. 1 requires more than an incantation of the words "free and democratic society". These words require some definition, an elucidation as to the values that they invoke. To a large extent, a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. 1 is not restricted to values expressly set out in the Charter (Slaight, supra, at p. 1056). With this guideline in mind, in Oakes I commented upon some of the ideals that inform our understanding of a free and democratic society, saying (at p. 136):

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.

It is important not to lose sight of factual circumstances in undertaking a s. 1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract.

[100] He then discussed in turn: (1) the objective - are the concerns of Parliament pressing and substantial in a free and democratic society?; (2) proportionality - are the means chosen to further the objective proportionate to the ends? This raises these subsidiary questions: (i) Is there a rational connection between the legislation and the parliamentary purpose? (ii) Is the legislation tailored to be a minimal impairment of the freedom guaranteed by s. 2(b)?

[101] In the context of this case, the proportionality question might be put thus: Is s. 163.1(4) a measured and appropriate response to the phenomenon of pornography of the kind in issue whatever it may be?

The case requires the Court to address one of the most difficult and controversial of contemporary issues, that of determining whether, and to what extent, Parliament may legitimately criminalize obscenity.

[103] The case before us would be of the same order if we were addressing the other provisions of s. 163.1, that is to say, those which deal with making and distributing the materials defined as child pornography.

[104] Subsection (1)(b) has about it a most curious aspect. It makes possession of materials which advocate or counsel a certain form of criminal activity a crime, although counselling or advocating such activity is not itself a crime.

[105] It is as if the Criminal Code made it a crime to possess a book which counsels or advocates the overthrow by force or violence of the government but did not make it a crime to advocate publicly the use of force or violence for such a purpose.

[106] To give another example, it is as if Parliament made it a crime to possess Mein Kampf on the ground the book is inherently evil but had never enacted s. 319.

[107] For this reason alone, s. 163.1, when analyzed, has about it, at least in the context of subsection (1)(b) imported into subsection (4), an air of unreality.

[108] The critical issue in Butler was the meaning of subsection 163(8):

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

[109] The case in truth turned on the meaning of "undue". Having set out the "Community Standards Test" and the "Dehumanizing Test", Sopinka J. said, at 483:

This review of jurisprudence shows that it fails to specify the relationship of the tests one to another. Failure to do so with respect to the community standards test and the degrading or dehumanizing test, for example, raises a serious question as to the basis on which the community acts in determining whether the impugned material will be tolerated. With both these tests being applied to the same material and apparently independently, we do not know whether the community found the material to be intolerable because it was degrading or dehumanizing, because it offended against morals or on some other basis. In some circumstances a finding that the material is tolerable can be overruled by the conclusion by the court that it causes harm and is therefore undue. Moreover, is the internal necessities test dominant so that it will redeem material that would otherwise be undue or is it just one factor? Is this test applied by the community or is it determined by the court without regard for the community? This hiatus in the jurisprudence has left the legislation open to attack on the ground of vagueness and uncertainty. That attack is made in this case. This lacuna in the interpretation of the legislation must, if possible, be filled before subjecting the legislation to Charter scrutiny.

[110] He then divided, for the purposes of his analysis, pornography into three categories, at 484-85 (S.C.R.):

Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence. Relating these three categories to the terms of s. 163(8) of the Code, the first, explicit sex coupled with violence, is expressly mentioned. Sex coupled with crime, horror or cruelty will sometimes involve violence. Cruelty, for instance, will usually do so. But, even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category. As for category (3), subject to the exception referred to below, it is not covered.

* * *

In making this determination with respect to the three categories of pornography referred to above, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.

[111] This passage was drawn to our attention by counsel. But Mr. Justice Sopinka, who was not addressing legislation which made simple possession a crime, did not explain what he meant by "children". There was, of course, no need for him to do so because that was not what was in issue. I note, also, that as the charges against the accused have never been tried, we have no findings as to whether anything seized from him fell within the first two of Mr. Justice Sopinka's categories of pornography.

[112] Addressing the objectives of the legislation, Sopinka J. said this, at 493:

In my view, however, the overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society. In Town Cinema, Dickson C.J. stated, at p. 507:

It is harm to society from undue exploitation that is aimed at by the section, not simply lapses in propriety or good taste.

[113] On the minimal impairment requirement of the proportionality test he wrote, at 506:

Fourth, while the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. (1), which is not in issue here, has been held by this Court not to extend its reach to the private use or viewing of obscene materials.

[114] Whether one should take from this passage that Sopinka J. might have held a different opinion on the constitutionality of s. 163 if private possession had been proscribed by it, I cannot say.

[115] I come to attempting to apply these authorities to the legislation at hand.

[116] Had chapter 36 of the Statutes of 1993 had a preamble as did chapter 30 of the Statutes of 1997, the task would be much less difficult.

[117] Was the objective of the statute: (1) to stop persons under eighteen being used in the making of films and photographs which are sexual in content on the footing that being so used is harmful to the participants, (2) to prevent materials of such a nature from getting into the hands of others whether above or under the age of eighteen who being sexually stimulated by them might in consequence sexually interfere with other persons under eighteen, (3) by subsection (b) especially to discourage the publication of materials which counsel or advocate that which the section refers to, the thesis being that persons who might acquire such materials will not do so from fear of criminal sanction and the market will therefore dry up? Even if all of these were objectives, was there the additional, and perhaps constitutionally objectionable, purpose of making it easier for the police to build a case against an accused on the making, sale and distribution of such materials? It was, as I have already noted, the thrust of the evidence of Detective Wolff before the Standing Committee that it would be easier to proceed if possession were sufficient to obtain a warrant to search. In other words, the warrant thus legally obtained might provide fruits of a search sufficient to support a prosecution under subsections (2) or (3).

[118] There is in this exercise of determining the objective or objectives of a statute without a preamble a serious difficulty. How is the purpose of Parliament to be deduced? Surely, it cannot be from the speeches of individual members. Here the problem is compounded by the fact that when the section was enacted, a common form of sexual congress between males was proscribed for those under eighteen, but later the proscription was declared of no force and effect under s. 52.

[119] In attempting to discern the objective, I take it that it is permissible to assume that Parliament knew what the Supreme Court of Canada had said in R. v. Butler approximately a year and a half earlier.

[120] Unfortunately, it is not clear to me whether in R. v. Butler the Supreme Court of Canada was concerned with harm to the actors in pornographic material or with harm to the viewers who might then have corrupt thoughts or with the harm the viewers might be instigated to inflict upon others. This difficulty about the objectives affects the other branches of the Oakes test as it has been explained in R. v. Keegstra and R. v. Butler. In addressing the final question in the proportionality test, "Is the legislation tailored to be a minimal impairment of the freedom guaranteed by s. (2)(b)?", the question is not the objective but the consequence.

[121] Whatever the objective of this statute truly was, I consider subsection (1)(b) in the context of subsection (4) fails the proportionality test.

[122] First, a legislative provision which makes criminal the possession of material which advocates certain behaviour when advocating that behaviour publicly is not itself a crime seems to me to lack all reason. That which is not "reasonable" cannot be a "reasonable limit".

[123] Secondly, the subsection was patently rooted in the belief of at least some members of Parliament that s. 159 was constitutionally sound law. That belief was erroneous.

[124] Thirdly, and most importantly, to make criminal the private possession of expressive material of any kind is or ought to require the most compelling evidence of necessity.

[125] What then of subsection (1)(a) of s. 163.1 in the context of subsection (4)? This provision I repeat for convenience:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

[126] As I read subsection (a), it does not, for instance apply to books. The possessor of a copy of the Satyricon or of the poems of Catullus would not be caught by it. But, as Mr. Peck pointed out, it would cover the case of an eighteen-year-old taking salacious photographs of his seventeen-year-old girlfriend.

[127] The subsection would be less troubling if it were confined to persons under the age of fourteen years.

[128] Mr. McAlpine, in his submission which I have quoted supra, says that the definition in subsection (a) is overly broad in two respects. For convenience, I repeat what he said:

[6] First, paragraph 163.1(1)(a) is overly broad by capturing the possession of visual images of the sexuality of children and young persons that are purely the products of their creators' imaginations and involve no children or youth in its production. This includes images which are self-authored and never disseminated.

[7] Second, paragraph 163.1(1)(a) overreaches by including all pictures that record explicit sexual acts involving youth or young adults who are or appear to be aged 14 to 17. Many sexual acts engaged in by persons who are or appear to be aged 14 to 17 are perfectly legal and are not defined as sexual exploitation by the Criminal Code. This overbreadth even extends to capture possession of pictures of one's own legal sexual activity.

[129] I agree with him.

[130] Thus, as this legislation stands at present, it does not survive the proportionality test.

[131] For these reasons, which differ to some extent from those of the learned judge below, I would dismiss this appeal.

"THE HONOURABLE MADAM JUSTICE SOUTHIN"

Reasons for Judgment of the Honourable Madam Justice Rowles:

I. INTRODUCTION

[132] The issue on this appeal is not whether Parliament was justified in enacting legislation to protect children from the abuse and exploitation occasioned by the production and dissemination of child pornography. The parties and all of the intervenors were in agreement that it was. The contentious question is whether one of the provisions in the legislative scheme enacted for that purpose is unconstitutionally overbroad.

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[134] I have had the advantage of reading in draft the reasons for judgment of Madam Justice Southin. While I agree with my colleague that the appeal should be dismissed, I prefer to give my own reasons for reaching that result.

[135] In the trial court, the Crown conceded that s. 163.1(4) of the Criminal Code of Canada, which makes it an offence to possess anything defined in s. 163.1(1) as child pornography, violates freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. The Crown has not resiled from that position on appeal but argues, as it did in the court below, that the violation can be justified under s. 1 of the Charter.

II. CANADIAN CHILD PORNOGRAPHY LEGISLATION

[136] On 23 June 1993, Bill C-128, An Act to amend the Criminal Code and the Customs Tariff, received Royal Assent. The Act amended the Criminal Code on several matters, including the creation of child pornography offences under s. 163.1. The whole of s. 163.1 is set out below and the subsection under constitutional attack has been underlined:

163.1 (1) In this section, "child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(a) an indictable offence and liable for imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4), 1993, c.46. s.2.

[Underlining added.]

III. SECTION 2(b) AND SECTION 1 OF THE CHARTER

[137] Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

* * *

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

[138] Section 1 of the Charter reads:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[139] The Crown conceded both here and in the court below that s. 163.1(4) of the Criminal Code impairs freedom of expression and therefore constitutes a violation of s. 2(b) of the Charter. Accordingly, the arguments on the appeal focused on whether the violation is justified under s. 1.

[140] In R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, the Supreme Court of Canada set out the analytical framework for determining, under s. 1 of the Charter, whether the violation of a Charter right could be justified as a reasonable limit in a free and democratic society. The analysis to be conducted under s. 1 was summarized in Egan v. Canada, [1995] 2 S.C.R. 513 at 605, 124 D.L.R. (4th) 609, in a passage subsequently quoted with approval in Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624 at 684-85, 151 D.L.R. (4th) 577, and in Vriend v. Alberta, [1998] 1 S.C.R. 493 at 554, 156 D.L.R. (4th) 385:

A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

A. Is the objective of the legislation pressing and substantial?

[141] It is common ground in this case that Parliament had a valid objective in passing legislation with criminal sanctions to protect children from the harm associated with child pornography. Counsel did differ to some extent in the way in which they framed the objective of the legislation.

[142] The appellant argues that the legislative scheme encompassed within s. 163.1 aims to protect children from the many evils of child pornography, including direct harm to children, both in the making of child pornography and the creation of a permanent record of that abuse. The legislation is also aimed at preventing indirect harm to children, which is said to come about in three ways:

(1) Child pornography may be used by some paedophiles in the grooming process to facilitate sexual activity with children.

(2) Child pornography may be used to confirm or augment the cognitive distortions of some paedophiles, reinforcing the belief that their behaviour is normal and does not harm children.

(3) Child pornography may incite some paedophiles to commit offences against children.

The Crown contends that child pornography may also harm society more broadly by desensitizing and legitimizing attitudes concerning the sexualization of children. It is also the Crown's contention that criminalizing the possession of child pornography helps to eradicate the clandestine market for child pornography and facilitates police enforcement efforts in this area. As may be seen from the foregoing summary, the appellant's position is that the objectives of s. 163.1, taken as a whole, are multifaceted and go well beyond protecting actual children used in the production of child pornography.

[143] The respondent frames the legislative objectives of s. 163.1 in more restrictive terms. The respondent submits that, "the legislative objective of s. 163.1 as a whole is to protect children from being victims of sexual abuse and/or exploitation". The respondent readily concedes that this objective relates to concerns which are pressing and substantial but argues in the second stage of the s. 1 analysis that the legislative means chosen, in part, to realize the objective are not proportionate to its effects.

[144] The assertion that s. 163.1 of the Criminal Code, taken as a whole, including its prohibition on simple possession, is directed at concerns that are pressing and substantial in Canadian society is not in contention. The danger which the production and existence of child pornography poses to children is evident from the conclusions of the Report of the Committee on Sexual Offences Against Children and Youth (the "Badgley Report") (Ottawa: Queen's Printer, 1984), Volume 1, at 101, and the Report of the Special Committee on Pornography and Prostitution (the "Fraser Report") (Ottawa: Queen's Printer, 1985), Volume 2, at 629, as well as from the opinion evidence given in the trial court in this case by Dr. Collins.

[145] Moreover, the need to protect children from all forms of sexual exploitation and child abuse is reinforced by the terms of the United Nations Convention on the Rights of the Child ("UNCRC"). The UNCRC is the most widely ratified human rights treaty in history with 191 countries, including Canada, having ratified it. Article 34 of the UNCRC reads:

(1) States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practises;

(c) the exploitative use of children in pornographic performances and materials.

[146] The Supreme Court of Canada has held that international human rights obligations taken on by Canada can constitute evidence that an objective is pressing and substantial for the purposes of the s. 1 analysis: R. v. Keegstra, [1990] 3 S.C.R. 697 at 749-55, 61 C.C.C. (3d) 1. That would be particularly so with a treaty reflecting as widespread an international consensus as the UNCRC.

[147] The conclusion that s. 163.1 embodies a valid legislative objective is further reinforced by the fact that most free and democratic societies impose some restriction through the criminal law on this type of expression. Mr. Justice Sopinka, in R. v. Butler, [1992] 1 S.C.R. 452, 70 C.C.C. (3d) 129, made a similar reference in support of his conclusion that restricting obscenity constitutes a valid legislative objective (at 497 S.C.R.):

In reaching the conclusion that legislation proscribing obscenity is a valid objective which justifies some encroachment on the right to freedom of expression, I am persuaded in part that such legislation may be found in most free and democratic societies.

[148] Before moving to the proportionality analysis, I think it is important to reiterate that Parliament had a valid legislative objective in enacting the legislative scheme in s. 163.1. Section 163.1 as a whole is directed at preventing harm to children, specifically in the form of sexual abuse or exploitation caused, both directly and indirectly, by the production and existence of child pornography. I agree with the appellant that it is important to recognize that the valid objectives of the legislation do extend beyond the prevention of the direct harm to children which results from their involvement in the production of child pornography.

B. Are the means chosen to attain the legislative objective reasonable and demonstrably justified in a free and democratic society?

1. General

[149] When considering whether the proportionality test is satisfied, it is important to bear in mind the nature of the expression that is being restricted and its proximity to the core values protected by s. 2(b) of the Charter. The values which the Supreme Court of Canada has recognized as underlying the protection of freedom of expression are the search for truth, participation in the political process, and individual self-fulfilment: see Keegstra, supra at 762-67. The "core" of protected expression relates to these underlying values. As Cory J. put it in R. v. Lucas, [1998] 1 S.C.R. 439 at 459, 123 C.C.C. (3d) 97:

Quite simply, the level of protection to which expression may be entitled will vary with the nature of the expression. The further that expression is from the core values of this right the greater will be the ability to justify the state's restrictive action.

[150] In Keegstra, supra, Dickson C.J.C., made the following observations (at 760 S.C.R.):

While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

[151] In Butler, supra, Sopinka J. held that obscenity did not fall within the "core" of protected expression (at 500 S.C.R.):

In my view, the kind of expression which is sought to be advanced does not stand on an equal footing with other kinds of expression which directly engage the "core" of the of freedom of expression values.

[152] Similarly, child pornography cannot be said to lie close to the core of protected expression. No other conclusion is possible given the strong statements from the Court that obscenity (Butler, supra), hate propaganda (Keegstra, supra), and defamatory statements (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129), among others, lie far from the core of protected expression.

[153] However, the fact that child pornography does not lie close to the core of protected expression cannot be used to circumvent the s. 1 analysis. The burden still lies with the Crown to justify the infringement. As Madam Justice McLachlin cautioned in her minority opinion in R v. Lucas, supra, at 486-87:

It may be useful to discuss the relation of the expression at issue to the core values underlying s. 2(b) at the outset of the s. 1 analysis, as context for the analysis that follows. However, we must be careful not to allow the discussion of context to pre-empt the analysis itself. To allow the perceived low value of the expression to lower the bar of justification from the outset of the s. 1 analysis is to run the risk that a judge's subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes test. This risks reducing the s. 1 analysis to a function of what a particular judge thinks of the expression, thus shortcutting the cost-benefit analysis proposed by Oakes. Instead of insisting that the limitation on the right be justified by a pressing concern and that it be rationally connected to the objective and appropriately restrained, the judge may instead reason that any defects on these points are resolved in favour of justification by the low value of the expression. The initial conclusion that the expression is of low value may thus dictate the conclusion on the subsequent steps of the analysis in a circular fashion.

[154] I turn now to consider the three aspects of the proportionality analysis, which are:

(1) the existence of a rational connection between the legislative objective and the impugned measures;

(2) minimal impairment of the right or freedom; and

(3) proportionality between the deleterious effects and the salutary effects of the impugned measures.

2. Rational Connection

[155] While the Crown bears the burden of establishing all the elements under the s. 1 analysis, including rational connection and minimal impairment, that does not mean that the Crown must show that the government has enacted the "perfect" legislative scheme: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1138. As Dickson C.J.C. stated in Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 994, 58 D.L.R. (4th) 577, in which the constitutionality of legislation restricting advertising directed at children was in issue:

In the instant case, the Court is called upon to assess competing social science evidence respecting the appropriate means for addressing the problem of children's advertising. The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective.

[Emphasis added.]

and further, at 999:

While evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups.

[Emphasis added.]

[156] The latter comments were adopted and applied by Sopinka J. in Butler, supra at 505, and are particularly apposite in the case at bar, given the legislation's objective of protecting children, a most vulnerable group, from sexual exploitation and abuse.

[157] This point becomes significant in the present case in relation to the indirect harm to children which may be caused by the existence of child pornography. While the harm caused to young children who are used in the making of child pornography is undisputed, the social science evidence is inconclusive with regard to some aspects of the indirect harm said to flow from child pornography. As the appellant points out in its factum, the debate on some of these issues has existed among behavioural scientists for many years and it is very likely to continue in the future.

[158] To use the words of Butler, supra at 504, what the Crown has succeeded in showing is a "reasoned apprehension of harm" to children resulting both from the potential use of child pornography by paedophiles and from the desensitization of society to the use of children as sexual objects. Having shown a reasoned apprehension of harm based on the available social science evidence, Parliament is not constitutionally obligated to await exact proof on these issues before taking legislative action to protect children from these risks.

[159] The legislative scheme enacted in s. 163.1 of the Criminal Code attacks the child pornography industry at every stage: production, importation, distribution, and possession. Subsection (4) of s. 163.1, which prohibits possession of child pornography as defined in subsection (1), cannot be said to fail for want of a rational connection when the Crown has shown that children are put at risk by the creation and existence of that form of expression. The problem with subsection (4), if there is one, must lie in its potential overreach.

3. Minimal impairment

[160] The respondent's central argument on his constitutional challenge to the prohibition on possession of child pornography is one of overbreadth. He argues that the legislation, while pursuing a valid objective, overreaches in a constitutionally impermissible manner.

[161] The respondent concedes that the criminal law can, and should, proscribe the simple possession by an adult of certain types of child pornography. Such material would include photographic, film, video, or other images of an actual child under 14 years of age and, in some circumstances, between the ages of 14 and 17, which show a child engaged in, or depicted as engaged in, explicit sexual activity of a kind that would constitute an offence under the Criminal Code. The respondent submits, however, that the prohibition on simple possession of child pornography found in s. 163.1(4), when read in conjunction with the definition of child pornography found in s. 163.1(1), makes criminal the private possession of a much wider range of materials. He submits that s. 163.1(4) extends beyond that which is needed to advance Parliament's legislative objective of protecting children from the kinds of harm, both direct and indirect, that are associated with child pornography. The respondent's position is that, to the extent that s. 163.1(4) does extend beyond its legislative objective, it is constitutionally unsound because of its overbreadth.

(a) The concept of overbreadth

[162] In R. v. Heywood, supra, Cory J. had occasion to discuss the concept of overbreadth and to review the jurisprudence which surrounds it. His comments were made in the course of determining whether a section of the Criminal Code, whichprohibited anyone convicted of a sexual offence, regardless of whether the offence involved a child, from loitering in such places as a park, violated s. 7 of the Charter. Mr. Justice Cory first differentiated the related concepts of vagueness and overbreadth at 792:

Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. ... [T]he meaning of a law may be unambiguous and thus the law will not be vague; however, it may still be overly broad. Where a law is vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.

He continued at 792-93, speaking again in the context of a s. 7 analysis:

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[163] Mr. Justice Cory cautioned, however, that the court must exercise a measure of deference in scrutinizing legislation for overbreadth (at 793):

In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator.

[164] Later in his reasons, Cory J. noted, at 803, that his comments applied with equal force to the minimal impairment branch of the s. 1 analysis.

(b) Use of reasonable hypothetical examples to illustrate overbreadth

[165] In the context of constitutional challenges based on alleged infringements of Charter rights, the Supreme Court of Canada has approved the use of reasonable, hypothetical examples to illustrate the constitutional deficiencies of legislation. This mode of analysis was first adopted in relation to a constitutional challenge to legislation alleged to violate s. 12 of the Charter, which guarantees the right not to be subject to cruel and unusual punishment: R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97; R. v. Goltz, [1991] 3 S.C.R. 485, 67 C.C.C. (3d) 481. In Heywood, supra, Cory J. applied this reasoning to show that the impugned legislation in that case was impermissibly overbroad under s. 7. In that regard, he stated at 799:

This Court has approved the use of reasonable hypotheses in determining whether legislation violates s. 12 of the Charter. ... I think the same process may properly be undertaken in determining the constitutionality of s. 179(1)(b). The effect of the section is that it could be applied to a man convicted at age 18 of sexual assault of an adult woman who was known to him in a situation aggravated by his consumption of alcohol. Even if that man never committed another offence, and was not considered to be a danger to children, at the age of 65 he would still be banned from attending, for all but the shortest length of time, a public park anywhere in Canada. The limitation on liberty in s. 179(1)(b) is simply much broader than is necessary to accomplish its laudable objective of protecting children from becoming victims of sexual offences.

[166] This mode of reasoning is also well suited to determine whether a provision found to violate s. 2(b) is justified under s. 1. An example of such reasoning may be found in the judgment of McLachlin J. in R. v. Zundel, [1992] 2 S.C.R. 731 at 772, 75 C.C.C. (3d) 449. The problem of overbreadth, like that of vagueness, is of particular importance where a statutory provision is found to violate freedom of expression because of the chilling effect that such a law could have on constitutionally protected expression which falls outside the intended ambit of the law. Reasonable hypothetical examples serve to illustrate the unintended reach and potential effect of such a provision.

4. The proscription of simple or private possession

[167] It is essential to recognize that the respondent's overbreadth argument is directed solely to s. 163.1(4), which makes it an offence to possess child pornography, as defined in s. 163.1(1). This point cannot be over-emphasized. Nothing in the respondent's argument, or the overbreadth analysis that follows, speaks to the other more serious offences contained in s. 163.1. Possession for the purposes of publication and possession for the purposes of distribution or sale are already proscribed by sections 163.1(2) and(3), respectively. By implication then, subsection (4) is solely targeted to the private possession of child pornography. The British Columbia Civil Liberties Association ("BCCLA"), in its written argument on this point, observes that it is not aware of another Canadian criminal law, either current or historical, that provides for a sentence of incarceration for the mere possession of expressive material.

[168] Section 163.1(4) can be distinguished on this basis from the obscenity provision at issue in Butler, supra. The fact that the obscenity provision under constitutional attack in Butler did not extend to private possession was one of five factors that led Sopinka J. to the conclusion that the provision there in question involved a minimal impairment of freedom of expression. He stated at 506-07:

[W]hile the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. 1, which is not in issue here, has been held by this Court not to extend its reach to the private use or viewing of obscene materials....

Accordingly, it is only the public distribution and exhibition of obscene materials which is in issue here.

[169] Chief Justice Dickson, in Keegstra, supra, made a similar observation in finding that s. 319 of the Criminal Code minimally impaired freedom of expression. He emphasized that the prohibition on the wilful promotion of hatred did not extend to private communications (at 772-73):

In assessing the constitutionality of s. 319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual. Indeed, that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation. ...

[I]n determining in Keegstra that the criminal prohibition of hate propaganda in s. 319(2) of the Criminal Code is not constitutionally overbroad, I relied to an extent upon the fact that private communications were not affected. The connection between s. 2(b) and privacy is thus not to be rashly dismissed, and I am open to the view that justifications for abrogating the freedom of expression are less easily envisioned where expressive activity is not intended to be public, in large part because the harms which might arise from the dissemination of meaning are usually minimized when communication takes place in private, but perhaps also because the freedoms of conscience, thought and belief are particularly engaged in a private setting.

[171] Rather than the extent of criminalization being limited to dissemination of child pornography, the impugned law makes private possession of expressive material a criminal offence. Making it an offence to possess expressive material when that material may have been created without abusing children and may never be published, distributed or sold, constitutes an extreme invasion of the values of liberty, autonomy, and privacy protected by the rights and freedoms enshrined in the Charter.

[172] In R. v. Dyment, [1988] 2 S.C.R. 417, 45 C.C.C. (3d) 244, the Supreme Court of Canada considered the interrelationship between privacy, liberty, and the essence of a democratic state. Mr. Justice La Forest, speaking for a majority, described the Court's Charter jurisprudence with respect to privacy as being (at 427-28 S.C.R.):

... altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349-50. Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

[Emphasis added.]

[173] Mr. Justice La Forest expanded on this idea in Thomson Newspapers v. Canada (Director of Investigation & Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 517, 54 C.C.C. (3d) 417. In the course of finding there to be a lower expectation of privacy in business records, he stated the rationale for according constitutional protection to the concept of privacy:

The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life. It is for the individual to decide what persons or groups he or she will associate with, what books he or she will read, and so on. One does not have to look far in history to find examples of how the mere possibility of the intervention of the eyes and ears of the state can undermine the security and confidence that are essential to the meaningful exercise of the right to make such choices.

[174] Section 163.1(4), by proscribing the mere possession of expressive materials, including the recording of one's own thoughts and the works of one's own imagination profoundly violates freedom of expression.

[175] The fact that s. 163.1(4) is directed only to the private possession of expressive material, as opposed to some form of dissemination to others, reduces substantially the likelihood that any potential harm to children will be prevented through the imposition of criminal sanctions. While the impugned provision is unlikely to alter appreciably the harm caused to children, the extent to which it trenches upon the values of liberty, autonomy, and privacy that lie at the heart of a free and democratic society is increased dramatically. It is against this background that the impugned subsection must be subject to minimal impairment scrutiny.

5. Aspects of overbreadth in s. 163.1(4)

[176] The respondent's submission that s. 163.1(4) is overbroad focuses on three areas: (1) the expressive materials caught by the definition of child pornography; (2) the age of persons depicted in child pornography who would be caught by the provision; and (3) the range of persons who are potentially liable to criminal sanction under the provision. Again, all of the respondent's arguments on overbreadth are made solely within the context of the offence of simple possession under s. 163.1(4).

[177] I will examine the arguments in turn as well as some hypothetical examples that illustrate the reach and effect of the impugned provision. The subsection which defines child pornography is set out again for convenience of reference:

163.1 (1) In this section, "child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

[178] Respondent's counsel argues that the definition of child pornography found in s. 163.1(1) captures and proscribes a continuum of materials which ranges from explicit representations of real infants being sexually abused to materials which cannot be said to pose any danger to children. For that reason the use of the evocative and clearly emotive phrase "child pornography" in the definition section must not be allowed to displace or pre-empt a careful inquiry into precisely what materials would be captured by it.

[179] I agree with respondent's counsel that the definition in s. 163.1(1)(a), by the inclusion of the phrase "or other visual representation", would extend to works of the imagination which do not involve the participation of any actual child or youth in their production. This would include all sketches, drawings, sculptures, and computer-generated images of persons under the age of 18 which depict the sexual content described in subsections (i) and (ii), and which lack "artistic merit" or an "educational, scientific or medical purpose" necessary to engage the defence found in s. 163.1(6).

[180] The definition in s. 163.1(1)(b) similarly captures a wide range of material which would not involve the participation of any actual children or youth in their production. This is particularly so because subsection (1)(b) includes written material that advocates or counsels sexual activity with a person under 18 years of age that would constitute an offence under the Criminal Code. The inclusion of written material is particularly troublesome in the context of the possession offence.

[181] Cases such as Keegstra and Butler recognize that the government may well have a legitimate interest in preventing an individual from promulgating harmful and repugnant thoughts, but that interest goes only so far as to justify the offences of publishing or distributing and possibly exhibiting written materials. In relation to child pornography, it is important to note that publishing and distributing such written materials are already caught by the offences created by subsections (2) and (3) of s. 163.1.

[182] The justification for criminalizing publication and distribution of harmful and repugnant thoughts does not extend to the criminalization of the private recording of a person's own thoughts, albeit dangerous or repugnant ones, where those thoughts are not shared. To meet the requirement of minimal impairment, the appellant would have to get over the difficult hurdle of showing some reasoned apprehension of harm that flows from the private possession, as opposed to the dissemination, of a recording of a person's own thoughts.

[183] The inclusion of the materials described above, which do not involve any harm to actual children in their production, can be justified only with reference to the indirect harm to children that may be caused by the existence of child pornography. The indirect harm thought to be occasioned by the existence of child pornography was referred to by Dr. Collins in his testimony in the trial court. That harm could be occasioned by the existence of the described material may be open to question but, in any event, by comparison with material involving actual children, material which does not is likely to pose less danger of indirect harm. In his testimony before the trial judge, for example, Dr. Collins made only a single reference to the use by paedophiles of works of the imagination such as drawings. Though Dr. Collins described in detail the various kinds of indirect harm caused by child pornography, though grooming, incitement, and the reinforcement of cognitive disorders, his observations appear to refer predominantly to the use of visual depictions of actual children.

[184] Similarly, the legislative history of s. 163.1 provides scant evidence of concern with any kind of harm to children caused by works of the imagination. The two most comprehensive and influential public reports on the subject of sexual exploitation and abuse of children in Canada are the Badgley Report and the Fraser Report. The Badgley Report did not identify works of the imagination as increasing the risk of the sexual exploitation of children, and it recommended limiting child pornography legislation to visual depictions that use actual children or youth in their production (Vol. 1, at 102-03). The Fraser Report appears to have been primarily concerned with the use of actual children and youth in the production of child pornography (Vol. 2, at 584-85, 629-32), though the report also recommended proscribing any material which advocates or encourages the sexual abuse of children (Vol. 2, at 635-36).

[185] Despite the obvious fact that no actual children could be harmed in the creation of works of the imagination, the appellant, in its written argument, invited the court to infer that there is a comparable risk of indirect harm to children from the simple possession of such materials. In my view, given the lack of social science evidence regarding the effect of works of the imagination, a court should be reluctant to draw such an inference. That seems to me to be particularly so considering the profound violation of freedom of expression and privacy which results from making the private possession of works of a person's own imagination a criminal offence.

[186] Respondent's counsel pointed out another way in which the definition of child pornography captures materials that may be produced without the involvement of any actual children or youth. The definition in s. 163.1(1) includes adults who are "depicted as being under the age of eighteen years". While the concept of "dress down" pornography may not be assailable as such, it is not at all clear why the age chosen for the cutoff point for depictions of sexual activity is the same as that for actual participation in sexual activity, namely 18 years of age. The appellant has not shown that any harm could flow from the depiction, by adult actors, of an activity which in itself is perfectly legal, namely sexual activity involving persons between 14 and 18 years of age that does not fall within the relationships prohibited under the Criminal Code (s. 153(1), sexual exploitation; s. 212(4), payment for sexual services; or s. 271, sexual assault).

[187] I note that the definition of child pornography in s. 163.1(1) of the Criminal Code goes significantly further than do its counterparts in other common law countries. Child pornography is dealt with in the United States at the federal level in Title 18, Part 1, Chap. 10 of the United States Code ("U.S.C."), under offences relating to the "sexual exploitation and other abuse of children". The legislation is directed solely at visual depictions of actual children, including depictions that have been manipulated or "morphed" by a computer. The Child Pornography Protection Act 1996 ("CPPA") expanded the definition of child pornography in s. 2256(8) of 18 U.S.C. to include the latter category of morphed images.

[188] The United States legislation does not criminalize the possession of either written materials or visual representations that do not involve images of actual children. The fact that the legislation is so limited has been identified by the American courts as being crucial to its passing constitutionality scrutiny. The United States Supreme Court, in New York v. Ferber, 458 U.S. 747 (1982), upheld a New York statute that prohibited visual material that depicted a person under 16 years of age engaged in a sexual performance. In describing the limited class of materials caught by the legislation, Justice White referred to the type of material which the state would be constitutionally barred from proscribing (at 764-65):

Here the nature of the harm to be combated requires that the state offence be limited to works that visually depict sexual conduct by children below a specified age. ... We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. [Footnotes omitted.]

See also Osborne v. Ohio, 495 U.S. 103 (1990), in which the U.S. Supreme Court upheld an Ohio statute that restricted its application to pictures of actual children in a state of nudity.

[189] The constitutionality of the CPPA's prohibition on possession of child pornography was recently upheld by the United States First Circuit Court of Appeals in U.S. v. Hilton, [1999] WL 44725 (1st. Cir. (Me.)), but as in Ferber, supra, the court did so on the basis of the very limited range of materials that were proscribed by the legislation. Justice Bownes found that the legislation was carefully drafted to capture only manipulations of real images which are "virtually indistinguishable from the banned photographic depiction" of actual children. He continued at 10, stating:

It follows that drawings, cartoons, sculptures, and paintings depicting youthful persons in sexually explicit poses plainly lie beyond the reach of the Act. By definition, they would not be "virtually indistinguishable" from an image of an actual minor. [footnotes omitted]

[190] It would appear from these statements that American legislation has been found to pass constitutional muster largely, if not only, because of the very carefully delineated range of materials to which it applies.

[191] England similarly restricts its child pornography legislation to photographs and pseudo-photographs (i.e., morphed images) involving real children. The relevant statutes are the Protection of Children Act 1978, and s. 160 of the Criminal Justice Act 1988, both as amended by ss. 84 and 86 of the Criminal Justice and Public Order Act 1994. Again, these provisions do not extend to either written materials or works solely of the imagination.

[192] The child pornography legislation in both Australia and New Zealand does include written materials, however. The Commonwealth of Australia in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 describes a category of materials, classified as "RC" or Refused Classification, which is directed to child pornography. This definition in turn provides the basis on which the criminal law of all Australian states proscribe child pornography. New Zealand addresses child pornography in the Films, Videos and Publications Classification Act 1993. Publication is defined in this respect to include written materials. The legislation in Australia, however, like that in England, is limited to depictions of children who are, or appear to be, under 16 rather than 18 years of age, as in the Canadian legislation.

[193] Turning to the second aspect of the respondent's argument on overbreadth, the criminal sanction in s. 163.1(4) applies with equal force to the very persons it is purportedly designed to protect. The subsection would apply to all persons under the age of 18 years who possess proscribed materials describing their own sexual activities. Given the broad definition of child pornography discussed above, this would potentially include a photograph or crude sketch made by a person under 18 of himself or herself either in a state of nudity or engaging in lawful sexual activity. It could also apply to all persons under the age of 18 years who participated in the production of proscribed materials. As the legislation is drafted, there is nothing to prevent a child or youth involved in the making of child pornography from being found criminally liable under s. 21 of the Criminal Code as a party to the offence of making child pornography contrary to s. 163.1(2).

[194] It is instructive in this regard to compare the criminal law of the Australian State of Victoria. Section 70(1) of the Crimes Act 1958 proscribes the possession of child pornography, but subsections (2)(d) and (2)(e) provide a defence where the person charged can prove:

(d) that the defendant made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the defendant was not more than 2 years older than the minor was or appeared to be; or

(e) minor or one of the minors depicted in the film or photograph is the defendant.

[195] The Australian provision provides just one example of a legislative effort to tailor the law so as to most effectively advance its objective, that of protecting children, while simultaneously impairing freedom of expression to the least degree possible.

[196] The respondent's third submission on overbreadth is that it criminalizes the possession of child pornography by persons who are no danger to young persons. This point will be taken up in the examples discussed below, but the argument must be approached with some caution. Any possession offence, by its nature, will unavoidably extend to those persons who possess the proscribed material or object for reasons other than those contemplated by Parliament in originally proscribing the material or object. To draft legislation so as to restrict its application explicitly to paedophiles or those who would otherwise pose a danger to children would be difficult, if not impossible. Rather than being, as the respondent submits, a third and independent aspect of overbreadth, it seems to me that this argument is perhaps better understood as a corollary of the overbreadth argument with respect to materials. If child pornography is defined to include an excessively broad continuum of materials, some of which cannot be shown to pose a danger to children, the range of individuals potentially liable under the possession offence in subsection (4) will correspondingly likely include a range of individuals who likewise pose no danger to children.

[197] The difficulties with the impugned legislation are the product of the interaction and combination of these various aspects of overbreadth, and the full extent of the difficulties is not apparent until this interaction is considered. Several simple hypothetical examples illustrate the potential overreach of the simple possession offence in subsection (4). A person who sketches a drawing or cartoon which depicts a person under 18 years of age engaged in explicit sexual activity would be liable under s. 163.1(4) despite the fact that the materials are self-authored and never shown to anyone. Anyone who simply sketches and keeps a crude drawing of the sexual organ (which may include breasts: R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97) or anal region of a person under the age of 18 years would be caught by s. 163.1(4). A couple, even a married couple, who record their own sexual activity would be criminally liable if one or both were between 14 and 17 years of age, even though the act depicted is lawful and the material remains in their private possession. A narcissistic 17 year old youth, to take another example, would be criminally liable if he simply took an erotic nude photograph of himself and kept it in his private possession. A person could be prosecuted under s. 163.1(4) for possessing a self-authored statement, perhaps even a diary entry, which advocated sexual offences with persons under 18 years of age even though that material is only a written record of the author's private thoughts and is never disseminated or shown to anyone.

[198] This latter example illustrates the degree to which s. 163.1(4) is truly only one step removed from criminalizing simply having objectionable thoughts. The Charter should never, or perhaps only where the most pressing need is demonstrated, permit the state to regulate an individual's private recorded thoughts, no matter how objectionable those thoughts may be. As the BCCLA state in their written submissions:

State efforts to coerce individuals into holding or abandoning thoughts, beliefs, or opinions - no matter how evil or repugnant they may be if acted upon - are the hallmarks of a totalitarian society and antithetical to a free and democratic society. For this reason, simple possession offences of expressive material should only be upheld in exceptional circumstances where the law in question is carefully tailored to capture only expressive material that is necessary to the attainment of an overriding state purpose.

[199] The examples given above amply illustrate the government's failure to tailor the impugned legislation in the manner suggested.

[200] B. Blugerman and L. May, in their article "The New Child Pornography Law: Difficulties of Bill C-128" (1993) 4 M.C.L.R. 17, provide a final example to illustrate the potential reach of s. 163.1. They note difficulties in interpreting the phrases "explicit sexual activity" and "sexual organ", and they conclude at 27:

An argument can be made that the fondling of a female's breast is sexual activity, and it would follow that the maker of a film which depicts such fondling of a 17-year-old (even if played by, for example, a 22-year-old) may now face up to 10 years imprisonment under the Act.

[201] It is important to remember that each of the individuals described above would be at risk of a criminal prosecution and conviction under s. 163.1 and with it, the horrific stigma associated with being labelled a child pornographer. In none of these examples, and others like them, has the Crown demonstrated a reasoned apprehension of harm sufficient to justify restricting an individual's freedom of expression in this manner.

[202] The defence of artistic merit or educational, scientific or medical purpose contained in subsection (6), while playing an important role generally in reducing the impairment of freedom of expression, is incapable of addressing the particular overbreadth described above. As these examples demonstrate, s. 163.1(4) overreaches most profoundly by reaching too far and too haphazardly into an individual's private life, thought, and expression.

[203] The defence contained in s. 163.1(6), with its focus on protecting expression with some expected public benefit or value, is not directed to the overbreadth problem identified above. The phrase "artistic merit", for example, as McCombs J. noted in Ontario (A.G.) v. Langer (1995), 97 C.C.C. (3d) 290 at 315 (Ont. Gen. Div.), lv. to app. to S.C.C. dismissed (1995), 42 C.R. (4th) 410n, imposes an objective standard. Where the overbreadth concerns lie, as they do in the case at bar, with the private possession of records of an individual's most intimate thoughts, imaginings, and conduct, it is not appropriate or adequate to address those concerns with a defence predicated on some notion of public benefit. Subsection 163.1(6) does contribute a crucial aspect to minimal impairment; however, it is not an aspect that is appropriate to the overbreadth concerns identified here. The statutory defence leaves a large range of expression unprotected for which no reasoned apprehension of harm can be shown.

[204] Moreover, it is not enough in these cases to fall back on the discretion of those enforcing the law. As McLachlin J. stated in Zundel, supra at 773, the discretion of Crown prosecutors and the police cannot make good a finding of overbreadth:

I, for one, find cold comfort in the assurance that a prosecutor's perception of "overall beneficial or neutral effect" affords adequate protection against undue impingement on the free expression of facts and opinions. The whole purpose of enshrining rights in the Charter is to afford the individual protection against even the well-intentioned majority. To justify an invasion of a constitutional right on the ground that public authorities can be trusted not to violate it unduly is to undermine the very premise upon which the Charter is predicated.

See also the comments of Lamer J. (as he then was) in Smith, supra at 1078.

[205] Section s. 163.1 as a whole is aimed at the valid and laudable objective of protecting children from the harms of sexual exploitation and abuse, but s. 163.1(4) overreaches by criminalizing a vast range of conduct for which no reasoned apprehension of harm can be shown. Even given the low value accorded to type of expression at issue in this case, the impugned legislation cannot be shown to minimally impair freedom of expression.

[206] It is worth recalling that courts in the past have struck down legislation to uphold the rights and freedoms enshrined in the Charter even where the impugned legislation has been directed at the most laudable and pressing objectives. In fact, this has included legislation specifically directed at protecting children from becoming victims of sexual offences: Heywood, supra. Further examples include RJR-Macdonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1; Smith, supra; and R. v. Hess, [1990] 2 S.C.R. 906, (sub nom. R. v. Nguyen; R. v. Hess) 59 C.C.C. (3d) 161. Where a provision has been found to be impermissibly overbroad, it is no answer for the government simply to fall back on the importance of its objective in enacting the legislation. To countenance such an approach would ultimately eviscerate the rights and freedoms guaranteed by the Charter.

[207] As Justice Brandeis admonished in his dissenting judgment in Olmstead v. U.S., 277 U.S. 438 at 479 (1927), the courts must remain vigilant in safeguarding constitutionally protected liberties even, or perhaps especially, in those cases where the government's legislative purpose is praiseworthy:

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.

6. Weighing of salutary and detrimental effects

[208] It is also my view that, in addition to failing at the minimal impairment stage, the impugned legislation would also fail for want of proportionality between its salutary and deleterious effects.

[209] In Dagenais v. C.B.C., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, Lamer C.J.C. reformulated the last stage of the proportionality analysis. He emphasized that the government must demonstrate the existence of proportionality between the deleterious effects and the salutary effects of the legislation, in addition to proportionality between the deleterious effects and the legislative objective, broadly stated. The Chief Justice explained the reason for this development at 887-88:

In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective. At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available. Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects.

[210] The Chief Justice continued at 889, clarifying the meaning of "proportionality":

In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.

The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. Although the minimal impairment stage of the proportionality test necessarily takes into account the extent to which a Charter value is infringed, the ultimate standard is whether the Charter right is impaired as little as possible given the validity of the legislative purpose. The third stage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter.

[212] The specific provision challenged in the case at bar is subsection (4), read in the context of the definition of child pornography contained in s. 163.1(1). It is therefore the salutary and detrimental effects of the offence of simple possession of child pornography, distinct from its dissemination, which must be considered at this stage of the s. 1 analysis.

[213] The detrimental effects of s. 163.1(4) on freedom of expression and personal privacy are substantial. By providing a sentence of incarceration for the possession of recorded thoughts and expression, including one's own thoughts and expression, the legislation trenches deeply upon the core values enshrined in the Charter and essential to a free and democratic society. The definition of child pornography in s. 163.1(1) captures a vast range of materials, a significant portion of which cannot be shown to pose a danger to children, especially when the materials remain in the private possession of their creator. The far-reaching definition of child pornography, in the context of a simple possession offence, also raises the spectre that legitimate and non-harmful expression will be chilled as individuals are forced, in the words of the trial judge, to become their own censors.

[214] The salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects. As Lamer C.J.C. explained in Dagenais, supra, one must isolate and consider the salutary effects of the impugned provision specifically. In this case, one must consider the value added by a simple possession offence, given the existence of other offences within s. 163.1 which specifically proscribe the manufacture, publishing, importation, sale, and distribution of child pornography, as well as possession for the purposes of publication or distribution. These other measures, as well as the obscenity provisions in s. 163, target much of the harm associated with child pornography, and they do so in a manner that impairs Charter rights and freedoms to a significantly lesser degree than does a simple possession offence. While a possession offence undoubtedly contributes in some measure to law enforcement efforts in this area, it does so at a substantial cost to the rights and freedoms guaranteed by the Charter. The limited salutary effects of the impugned provision are not proportionate to its profound invasion of freedom of expression and privacy.

IV. SUMMARY AND CONCLUSION

[215] As the Crown concedes, the provision in the Criminal Code making it an offence to possess child pornography infringes freedom of expression, which is protected by s. 2(b) of the Charter. The appeal in this case is directed to the question of whether, under s. 1 of the Charter, the limitation on the guaranteed right to freedom of expression can be demonstrably justified in a free and democratic society.

[216] The objective of the legislative scheme embodied in s. 163.1 of the Criminal Code is to prevent harm to children, specifically in the form of sexual abuse or exploitation caused, both directly and indirectly, by the production and existence of child pornography. That the need to prevent such harm is pressing and substantial is uncontentious.

[217] The particular legislative provision which was challenged is s. 163.1(4), which makes possession of child pornography, as that term is defined in s. 163.1(1), a criminal offence. The provision does not fail for want of a rational connection but, for the reasons I have endeavoured to explain, the salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects.

[218] Section 163.1(4) of the Criminal Code does not meet the proportionality test under the s. 1 Charter analysis, and is constitutionally overbroad.

[219] Accordingly, the Crown's appeal fails.

"THE HONOURABLE MADAM JUSTICE ROWLES"

Reasons for Judgment of the Honourable Chief Justice McEachern:

[220] The Respondent was charged on a four-count indictment. Two of the charges were laid under Criminal Codes. 163.1(4), which prohibits the simple possession of child pornography as defined in the Code. Traditionally, judges would have used the Latin phrase "possession simpliciter" to differentiate between possession without any qualifiers and more complex kinds of possession, such as possession for a particular purpose. I prefer to use the more easily understood term "simple possession" but this is not to suggest that the word "possession", in the context of this case, is an insignificant matter. The issue in this case is whether s-s. 4 is constitutionally valid.

[221] At trial the Respondent argued that s-s. 4 infringes upon freedoms, particularly freedom of "...thought, belief, opinion and expression" guaranteed by the Canadian Charter of Rights and Freedoms(hereinafter "the Charter"), and that this infringement cannot be justified under s. 1 of the Charter. The trial judge accepted this submission. As a result, he found s. 163.1(4) to be unconstitutional and of no force and effect. The accused was therefore acquitted on counts 2 and 4.

[222] Counts 1 and 3 were laid under s. 163.1(3), which deals with the importation, sale or possession of child pornography for the purposes of distribution or sale. These counts were also challenged at trial on constitutional grounds, but that challenge was not successful and no appeal has been taken on that question. These counts have yet to be tried.

[223] The Crown, supported by some intervenors and opposed by others, appeals against the acquittal of the Respondent on counts 2 and 4 for simple possession of child pornography.

[224] I wish to make two observations. First, because this case has attracted wide public interest, I shall attempt to explain my decision in the plainest possible language. I shall not quote from many of the relevant Supreme Court of Canada authorities on the Charter because they have been quoted often enough in many other cases, and I pause to observe that brief quotations taken from the text of much longer decisions are not always easy to understand.

[225] Second, the case we have to decide is a different case from that decided by the trial judge. He was asked to declare Codes. 163.1(4) unconstitutional because it banned the possession of any kind of child pornography. On this appeal the Respondent concedes that possession of some kinds of child pornography should be unlawful, but argues that the definition of child pornography contained in s. 163.1(1) is too broad because it criminalizes the possession of pornography, as defined, even if it does no harm to children. This is sometimes called an overbreadth argument, meaning that the legislation is broader than necessary to achieve its essential purpose of protecting children. In a classic overbreadth case, for example, the Supreme Court of Canada, relying upon s. 12 of the Charter, struck down a law that required a minimum sentence of seven years for importing certain narcotic drugs into Canada. It was argued that such a harsh sentence could be totally unnecessary in the case of a young person importing a single joint of marihuana into Canada. Similarly, the attack on s. 163.1(4) in this case is really an attack upon the offence of possession of child pornography based upon the breadth of the definition of "child pornography", which I shall quote presently.

The Fresh Evidence

[226] The first question to decide is whether an affidavit sworn by Detective Inspector Robert Matthews of the Ontario Provincial Police, tendered by counsel for the intervenors, Canadian Police Association (CPA), Caveat (Canadians against Violence Everywhere, Advocating its Termination) and Canadian Resource Centre for Victims of Crime, should be admitted as fresh evidence on this appeal even though it was not tendered at trial.

[227] There is no doubt that Detective Inspector Matthews is a knowledgeable police officer with special expertise in the area of child pornography. The essence of his evidence is that child pornography, as opposed to adult pornography, is spread more clandestinely, usually through the Internet, and is much more difficult to investigate. He believes that the offence of possession of such material is an essential police tool that assists police officers to discover who is creating and distributing child pornography and to locate and seize child pornography, often by the use of a search warrant, more easily than would be the case if investigations were confined solely to offences of importing, producing and distributing child pornography.

[228] While there could be strong arguments against the admission of this evidence, it is apparent that the contents of the affidavit are very straightforward, and I doubt if the arguments of counsel for any party would be materially different if the evidence were not received. In fact, Mr. Peck did not seriously oppose the admission of this evidence. He said it was unnecessary and irrelevant. Moreover, as the attack is really upon the definition of child pornography, the evidence in question goes some distance in explaining why the definition is so broadly stated but it does not directly affect the legal questions we have to decide. In these circumstances, I would admit Detective Inspector Matthews's affidavit into evidence, as I expect our decision will be appealed further and the courts should not deny themselves whatever possibly relevant information that may be available.

The Statutory Language

[229] The definition of child pornography is contained in Codes. 163.1(1), but it must be read and considered along with s-s. (6). These sections provide:

163.1.(1) In this section, "child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

***

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

[230] Subsection 4, under which the charges in this appeal were laid, provides:

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[231] As already mentioned, other sub-sections of s. 163.1 prohibit the importing, making and distribution of child pornography as well as its possession for the purposes of distribution and sale. Those sections are not directly involved in this case except that counsel for the Respondent argued they provide as much protection for children as can be achieved by legislation, thereby making the prohibition of simple possession unnecessary.

[232] The underlying question on this appeal is whether the simple possession of child pornography (as defined) that may have been created without abusing children and which may never be published, distributed or sold creates a sufficient risk of harm to children that it should be an offence for anyone to possess such material, for any purpose or for no purpose at all. The question of whether the material found in the possession of the Respondent was created without abusing children is, of course, a different question that can only be determined upon a trial.

The Facts

[233] At trial, Shaw J. described the underlying facts and the challenges advanced by the Respondent as follows:

[4] The evidence indicates that there were two seizures of materials from Mr. Sharpe. The first was by Canada Customs. That seizure was of computer discs containing a text entitled "Sam Paloc's Flogging, Fun and Fortitude, A Collection of Kiddie Kink Classics." As a result of that seizure Mr. Sharpe was charged with Counts 1 and 2. The second seizure was at Mr. Sharpe's home pursuant to a search warrant (the validity of which will be contested at a later point in this trial). That seizure was of a collection of books, manuscripts, stories and photographs said by the Crown to constitute child pornography. Many of the seized photographs are of nude boys displaying their genitals or anal regions.

[234] To the above, I should add that there was included in the material seized some other items of material including a sketch of a nude boy obviously under the age of 18 (and probably under the age of 14) with an erect penis.

[235] It seemed to be assumed by all parties that much of the seized material may fall within the present definition of child pornography in the Criminal Code,but that question will ultimately have to be determined at a trial if it is found that the prohibition against possession is valid.

[236] Some of these boys appear to be Asian. In my view it does not matter where these photographs were taken because if they were taken abroad, Canada's responsibilities under Article 34 of the International Convention on the Rights of the Child, which Canada ratified on December 13, 1991, are in no way confined to the protection of children residing in Canada. The Respondent did not argue otherwise.

The Relevant Rights and Freedoms Guaranteed by the Charter

[237] At trial, the Respondent relied primarily on ss. 2(b) and 15(1) of the Charter. On appeal, however, he also relied upon ss. 7 and 8, but no significant reliance was placed upon s. 15. The relevant Charter sections are in these terms:

2. Everyone has the following fundamental freedoms:

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(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

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7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

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8. Everyone has the right to be secure against unreasonable search or seizure.

[238] At trial, the constitutional framework for the Respondent's argument was simply that s. 163.1(4) of the Criminal Codepurports to prohibit the simple possession of child pornography while the Charter, on the other hand, guarantees the freedoms described in s. 2(b). Section 52 of the Constitution provides that the Charter is a part of the supreme law of Canada, and any law that is inconsistent with the Charter is of no force or effect to the extent of such inconsistency.

[239] The Crown conceded at trial that s. 163(4) is inconsistent with s. 2(b) of the Charter, leaving the real question whether the section can be "saved" under s. 1 of the Charter. No such concession has been made with respect to ss. 7 and 8. The concession regarding s. 2(b) was probably made because the Supreme Court of Canada has given such a broad meaning to the freedoms guaranteed by Charter s. 2, particularly freedom of thought, belief, opinion and expression. As already mentioned, I do not propose to quote representative passages from the many decisions of the Supreme Court of Canada that have described the nature of the right guaranteed by s. 2(b). Instead, I shall summarize this freedom by saying that it has been construed to include the right, particularly in one's own home, to express one's "essential" self by reading, writing and possessing books, diaries, pictures, clothes and other personal things that are intertwined with one's private beliefs, opinions, thoughts, curiosities and conscience. The conclusions of the trial judge depended almost entirely upon the very broad interpretation the Supreme Court of Canada has given to s. 2(b).

[240] Unlike the United States, where it has been held that pornography is not constitutionally protected, the Supreme Court of Canada has developed a multi-phased inquiry, sometimes called an "analysis" or a "balancing", to determine whether a Charter "freedom" may be limited by lawfully enacted legislation such as s. 163.1.

[241] The effect of the concession made at trial by the Crown, subject to the provisions of s. 1 of the Charter, is that the s. 2(b) freedom includes a legal and constitutionally protected right and personal freedom to possess explicit, sexually suggestive pictures of nude children even though they fall within the definition of child pornography.

[242] Although the Crown conceded that s. 163.1(4) infringed s. 2(b) of the Charter, it argued that the provision was saved by s. 1 of the Charter. It provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

(Emphasis added.)

[243] The first step in the analysis is to require the party seeking to justify a Charter infringement (in this case the Crown) to establish by a preponderance of evidence that the infringing law - in this case s. 163.1(4) prohibiting simple possession - is a reasonable limit on the freedoms in question that can be demonstrably justified in a free and democratic society.

[244] Because of the way this case was argued at trial, it was not necessary for the trial judge to consider some of the complicated stages of the required s. 1 analysis, as developed by the Supreme Court of Canada. Instead, he went directly to the "balancing" or "weighing" required in the final stage of what is called the proportionality test. The position taken by the Respondent's counsel on this appeal, however, will require me to deal with all the stages of the analysis in due course. Before I do that, however, it will be useful to discuss some other matters.

Charter Section 7

[245] Section 7, which has been quoted above, guarantees life, liberty and the security of everyone's person. Of these, only "liberty" and possibly "the security of the person" could be engaged in the context of this case. Liberty, of course, is a multi-dimensional concept. It involves at least two important aspects. First, liberty implies that, generally speaking, we must be free to conduct our private lives as we would wish. At the very least, this involves a right to see, think, read, write and enjoy whatever we wish, subject only to valid laws. Theoretically, this could include the right to possess child pornography. However, it seems to me that such a right, if guaranteed, would be protected by the more specific language of s. 2(b) particularly as that section has been interpreted by the Supreme Court of Canada. Second, "liberty" and "security of the person" could import the right not to be searched unreasonably, or to have privacy rights invaded unreasonably by the state. Again, as will be seen in a moment, this right is fully protected by the more specific language of s. 8.

[246] Thus, with respect, I do not view "liberty" rights protected by s. 7 as adding anything to the rights protected by ss. 2(b) and 8. An analogy can be drawn with R. v. Smith, [1987] 1 S.C.R. 1045, where in dealing with a minimum sentence under the Narcotic Control Act, the Supreme Court of Canada chose to focus only on s. 12, which specifically guarantees freedom from cruel and unusual punishment, rather than consider the more general terms of s. 7. I believe that is the approach I should follow and therefore do not propose to say anything further about s. 7.

Charter Section 8

[247] Section 8 provides a specific guarantee against unreasonable search and seizure. In this case, the seizures were carried out pursuant to statutory authority (a Customs seizure and a search warrant) that was not directly challenged. Recourse to this section, therefore, could arise only if the seizures were based upon an invalid law. Thus, in my view, s. 8 adds little if anything to the weight of counsel's submissions. Either the offence, as defined, is impermissibly broad and cannot be justified under s. 1 (in which case it should be struck down), or it is valid legislation that can be used as the basis for searches and seizures authorized by law.

[248] This is not to say that the risk of searches and seizures is not a valid basis for real concern about the privacy rights of our citizens. The law has always recognized that privacy, particularly in our homes, and the sanctity of our private papers are precious rights. These are clearly important factors in considering the Respondent's overbreadth argument.

The Judgment at Trial

[249] As already mentioned, the trial judge, after setting out his findings, turned directly to the proportionality part of the s. 1 analysis upon which the case at trial was decided. This part of the analysis requires the court to weigh the benefits of the prohibition against its deleterious or harmful effects. Generally speaking, if the prohibition limits a guaranteed right or freedom but the benefits of the prohibition are demonstrably more important than a guaranteed freedom, then the provision may be saved. However, if the harmful effects of the prohibition on freedoms protected by the Charter are greater than the benefits of the prohibition, then the provision cannot be justified and must be regarded as legally inoperative even though it has been enacted by Parliament.

[250] Dr. Collins, a prominent psychiatrist with expertise in pornography, explained that it is common for pedophiles to collect pictorial images of children as well as writings which have pedophiliac themes, for the purpose of fuelling their fantasies and increasing their "cognitive distortions" that child-adult sex is normal. Dr. Collins also said that "most pedophiles are seductive in their approach to children and they perceive their selfish desire for sexual gratification as being healthy for the child."

[251] Dr. Collins described this approach to seduction as a "grooming" process whereby pedophiles often use child pornography to try to lower the inhibitions of the child "... to convince them that sexual contact is healthy."

[252] In another part of his evidence, Dr. Collins testified that "... some pedophiles use erotic material solely for masturbatory fantasies, and won't go on to offend." However, he also said that there is enough evidence, both research and clinical, to support the view that child pornography is used in pedophiles' "fantasy stage" and that some will go on to act on their fantasies and offend by seeking to have sexual contact with children.

[253] With respect, it seems to me the trial judge basically accepted this evidence in his paras. [12] to [22]; yet he went on to comment that harm to children usually comes from "hard core" depictions, and that pornography could inhibit aggression in some cases and make it worse in others.

[254] While most of the evidence was given in terms of photographic depictions, the trial judge found it reasonable to assume that the dissemination of written material also poses "some risk of harm to children".

[255] The trial judge made a number of findings as follows:

[23] I make the following findings of fact based upon the evidence:

1. Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process.

2. Children are abused in the production of filmed or videotaped pornography.

5. It is not possible to say which of the two foregoing effects is the greater.

6. "Mildly erotic" pornography appears to inhibit aggression.

7. Pornography involving children can be a factor in augmenting or reinforcing a pedophile's cognitive distortions.

8. There is no evidence which demonstrates an increase in harm to children as a result of pornography augmenting or reinforcing a pedophile's cognitive distortions.

9. The dissemination of written material which counsels or advocates sexual offences against children poses some risk of harm to children.

[256] It will be noted that findings 1, 2, 3, 7 and 9 recognize that some forms of pornographic material can cause harm to children. However, some of these findings do not expressly deal with child pornography as defined, and some of them refer to hard core or highly erotic pornography (explicit sex or sex and violence) which are not necessarily relevant or useful distinctions for our analysis of the definition of child pornography. The important question is whether any particular material falls within the definition of child pornography, not whether the material is "highly" or "mildly" erotic. Whether it is hard or soft pornography, or filled with violence or not, is not relevant except to the extent that it helps to categorize the material as child pornography, some other kind of pornography, or possibly not pornography at all.

[257] It is apparent that the focus at trial was on the harm child pornography can do to children. As already mentioned, the Respondent admitted that possession of some kinds of pornography is harmful to children and should be prohibited.

[258] The benefits of the prohibition identified by the learned trial judge are described in the following passage from his Reasons for Judgment:

[34] I will now enter upon the weighing process. First, the salutary effects. The prohibition combats practices and phenomena which, at least arguably, put children at risk. These include: the use by some pedophiles of sexually explicit images in the grooming process leading to sexual relations with children; the abuse of children in the making of pornography and the preservation of that abuse in photographs or films; the confirmation or augmentation of cognitive distortions of some pedophiles; the incitement of some pedophiles to commit offences against children; and the advocacy or counselling of the commission of sexual offences against children.

[259] In the following paragraph from his Reasons, the trial judge then discussed the weight that he considered should be given to these "advantages". He said:

[35] There are factors which go to the weight to be attached to the effectiveness of the prohibitions in combatting the foregoing practices and phenomena. There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that "mildly erotic" images are used in the "grooming process." Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is a made a crime.

[260] It is apparent that the trial judge was not persuaded by the evidence that the protection of children was enhanced by the prohibition against simple possession of this material. I pause to note, however, that while recognizing in his finding #2 (quoted above) that "children are abused in the production of filmed or videotaped pornography", the trial judge seems not to have included on the "advantages" side of the balancing process the fact that simple possession of pornography creates a market for it. Without that market, production of some kinds of child pornography - which the trial judge found by its nature involves abuse of children - and profits from distribution and sale likely would be greatly reduced. As well, in focussing on the use and effects of pornography by pedophiles, the trial judge does not seem to have given sufficient consideration to the fact that the prohibition against possession reduces the abuse of children involved in making child pornography and, less directly, its distribution and sale into a market fuelled to some extent by those who choose to possess such material.

[261] The trial judge then turned to consider the detrimental effects of the prohibition. He referred to extensive Supreme Court of Canada jurisprudence about the importance of freedom of expression, which has been extended by the Court to include concepts not usually considered part of ordinary expression. As already explained, these authorities refer, for example, to the expression of a person's "essential self" through his or her personal belongings; the "...right of a person to ensure the ability to gain self-fulfilment by developing and articulating thoughts and ideas as they see fit"; "...respect for the inherent dignity of the human person; commitment to social justice and equality; accommodation of a wide variety of beliefs; respect for cultural and group-identity..."; and the right of privacy in one's own home.

[262] The trial judge then stated his views on the detrimental effects of the prohibition against simple possession in these terms:

[49] First and foremost, the invasion of freedom of expression and personal privacy is profound. Further, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition also includes pedophiles who, instead of preying on children, use pornography for very private purposes, such as relief from their affliction by masturbation. As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account. The ban includes "mildly erotic" pornography, such as is included in s-s. (1)(a)(ii), although the evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children. As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nonetheless subject to criminal sanctions arising from mere possession. A magazine or a newspaper may contain some material said to be pornographic. Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal: R. v. Popert (1981), 58 C.C.C. (2d) 505 (Ont. C.A.). Purchasers of such publications will have to become their own censors.

[263] The trial judge then turned to the "weighing" process:

[50] I turn then to weigh the salutary effects against the detrimental effects. In my opinion, the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition.

[51] As pointed out earlier, an individual's personal belongings are an expression of that person's essential self. Books, diaries, pictures, clothes and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience. The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight. I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects.

[264] As can be seen, the trial judge concluded that the effectiveness of s-s. (4) in protecting children from pedophiles or other forms of sexual abuse was so limited that it did not warrant the invasive effects of the prohibition. What I understand the learned trial judge to mean is that the danger to children posed by the simple possession of child pornography was so uncertain on the evidence before him, that its value was outweighed by the invasive effects of the prohibition on the right of private expression in a "very intimate and private aspect of a person's life."

[265] With respect, I believe this analysis, which seems to concentrate on the "possessor's" perspective rather than on the protection of children, is concerned largely with the protection of children from persons who might, directly or indirectly, be aroused dangerously by the simple possession of such material. Even if it were accepted that such risk is not sufficient to justify interference with the rights of those who wish to possess such material (a conclusion with which I respectfully disagree), the analysis does not give sufficient weight to the abuse (accepted as a matter of fact by the trial judge in his finding #2) done to children in the production of child pornography and the risk of future exploitation of other children as a consequence of creating a market for this kind of material.

[266] In my judgment, the inadequate weight given to these factors in the judge's analysis constitutes legal error that is sufficiently serious to permit us to undertake our own independent assessment of these competing factors.

[267] I wish to add a further comment. Some of the judge's specific findings demonstrate first that children are at risk from the possession of child pornography and second, that the prohibition against possession of child pornography does have some effectiveness in protecting children. If the exploitation of children in the making of pornography had been taken into account in the judge's weighing of advantages and disadvantages of the prohibition, I am far from satisfied that he would have reached the same conclusion.

[268] It follows, subject to the specific "Findings" of the trial judge, that the constitutionality of s. 163.1 is at large, and I turn, therefore, to consider the matter in light of the additional submissions we received which were not before the learned trial judge. As already mentioned, the Crown in this case conceded that s. 163.1(4) infringes the rights of the Respondent arising under s. 2(b) of the Charter, thus making a full s. 1 analysis necessary.

The Section 1 analysis of s. 163.1(4) as defined in s. 163.1 (1) and (6)

[269] The first stage in any s. 1 analysis is to determine the purpose of the legislation. The Respondent agrees that s. 163.1 was enacted "...for the protection of children from being sexually abused and/or exploited through child pornography." This would include the "indirect harm" of desensitization of attitudes generally regarding sexualization of children by written or visual material. According to the evidence, such abuse can take many forms such as being exploited in the production of pictures, videos and movies; being abused by persons sexually aroused wholly or in part by such material; or being "groomed" for sexual abuse by being shown pictures etc., as a device for persuading vulnerable youths that various kinds of deviant sex is normal and usual. The trial judge doubted the extent of the danger of the second two possibilities arising from simple possession, and the Respondent's counsel relied on the absolute prohibition in s. 163.1(2) against "making" child pornography as an argument against the necessity of prohibiting simple possession. I have no doubt the purpose of s. 163.1(4) as part of a comprehensive prohibition against child pornography is a legitimate legislative initiative for the protection of children.

[270] The next stage of the analysis is to apply the various parts of the test for the application of s. 1 established by the Supreme Court of Canada.

[271] The first step is to consider whether the objective to be served by the legislation in question is sufficiently important to warrant overriding a constitutionally protected right. I have no doubt that the protection of children in the context of this case is sufficiently important for such a purpose.

[272] There are three parts to the second branch of the test.

1. Rational connection

[273] The legislation must be fair and not arbitrary, carefully designed to achieve its objective, and it must be rationally connected to that objective. During argument in this Court, it was noted that ss. 163.1(a) and (b) were amended into their present form on the last day of Parliamentary debate. These amendments added certain visual representations "for a sexual purpose" and any written material or visual representations advocating or counselling sexual activity to the definition of child pornography. Consequently, counsel argued, the legislation was not carefully designed and seriously overreaches its proper objectives in protecting children by criminalizing some conduct that would not harm children.

[274] I am not able to accept that argument. Considering the importance of the objectives of the legislation, I am not prepared to second-guess Parliament on either the scope of the definition it chose, particularly when it added the qualifications and exemptions I have already described, or on the prohibition of simple possession. The fact that these amendments were made near the end of the debate is not particularly significant having regard to the fact that Parliament obviously decided, during the debate, that these amendments were necessary if the legislation could be expected to achieve its important purpose. In any event, it is conceded by the Respondent that possession of some pornographic material should be prohibited, and it cannot be assumed that the definition was not carefully drafted by legislative counsel and carefully considered by Parliament before it was adopted.

[275] I have no doubt that the definition is rationally connected to the objectives of the legislation since it describes, and limits, the subject matter of the various offences included in the section. The question of whether the prohibition against possession, as defined, overreaches the objectives of the legislation may best be considered in the minimal impairment part of the test, to which I now turn.

2. Minimal interference with guaranteed rights

[276] As already mentioned, counsel's submissions were largely that the prohibition against simple possession went farther than necessary to achieve the objectives of the legislation - the "overbreadth" argument. They sought to support this argument by examples where, for no social benefit, persons might be criminally sanctioned by the "innocent" or non-harmful possession of child pornography. These arguments, of course, arise out of the definition of that term in s. 163.1 (a) and (b), quoted earlier including, of course, written material.

[277] Counsel's arguments are based partly on the fact that the prohibition involves the depiction of anyone under the age of 18 years, when the age of consent for almost all forms of sexual activity in Canada is only 14 years.

[278] On this part of the case, I wish to comment that I do not consider the age of consent (14 years) for most sexual activity to be relevant to the analysis. Parliament fixed the age of consent at 14 years for reasons not likely to have included consideration of child pornography. The age at which Parliament deemed a person capable of consenting to sexual activity was chosen to avoid criminalizing conduct that Parliament thought should not be criminalized. It may be that 14 is too young and that the age of consent should be 16 or even 18. That, however, is a policy decision for Parliament. There are other examples of age "floors" in the Criminal Code that seem more relevant - the law prohibits paying for sex from anyone under age 18, for example - but the issue here is the age below which children are to be protected from exploitation by means of child pornography. That is an entirely different question from others that might be thought to arise under other provisions of the Code.

[279] As well, counsel argues that a person, in the exercise of privacy rights, could conceivably possess child pornography in the form of self-made sketches, writings or other material that did not involve a child in its creation. The person in possession might not intend or expect that the material would ever be seen or used by anyone other than the creator. Thus, the argument goes, possession of the material could not harm a child. But there is still a possibility that material of the kind in question in this case could cause harm to children: it may enhance cognitive distortions or get accidentally passed around.

[280] Counsel described a number of possibilities where, they argued, there should be no criminal responsibility. I shall only mention two examples in each category.

[281] With respect to the definition in s. 163.1(a)(i):

First, possession of drawings, cartoons and sculptures which show a person under 18 years engaged in explicit sexual activities, when such works of the imagination do not, in their production, abuse or exploit children;

Second, possession of photographs or videos of persons between 14 and 17 years engaged in explicit sexual activity, where the conduct itself is not criminal. In this respect, an argument could be made that fondling a 17 year old woman's breast is explicit sexual activity and it would follow that the maker of such a film, even if shown to an adult person would be guilty of this offence;

[282] With respect to s. 163.1(a)(ii):

First, possession of drawings, cartoons and sculptures in which the dominant characteristic is the depiction of a sexual organ (which may include a woman's breasts) or the anal region of a person under 18 years, when such works of imagination do not, in their production, abuse or exploit children;

Second, possession of photographs or videos of a married couple, one or both of whom are between 14 and 17 years, recording their own sexual activity;

[283] With respect to s. 163.1(1)(b):

First, possession of visual representations that do not abuse or exploit children in the production of such representations;

Second, possession of written material advocating sexual activities with children under 18 years, when such material is only a written record of the author's private thoughts.

[284] I pause to point out that the definition of child pornography in s. 163.1(1)(a)(i) does not include "implicit" sexual activity; the definition in s. 163.1(1)(a)(ii) excludes anything not depicted for a sexual purpose; that anything alleged to be child pornography under s. 163.1(1)(b) must "advocate" or "counsel" illegal sexual activity with a person under 18 years (which must therefore require private or public publication of some kind); and further, anything that has artistic merit or an educational, scientific or medical purpose is exempt. Anyone who has accidental possession of child pornography, such as by purchasing a magazine without examining its contents, might not have the requisite mens rea for the offence depending upon a number of circumstances. Thus, in my view, the likelihood of anyone being criminalized by the kind of innocent possession described by counsel is extremely remote.

[285] It must also be remembered that photographs or other depictions of a young couple (under the age of 18) who record their sexual experiences for private purposes could end up in the possession of others and become harmful to children. Further, some who would claim an innocent purpose could actually be purveyors of child pornography. It would not be easy to draft language that would serve the legislative purpose of this section and at the same time protect every possible possessor of pornographic material who cannot bring himself or herself within the exceptions contained in the definition described above, particularly the exception under s-s. (6) for material that has artistic merit or an educational, scientific or medical purpose. As I have already said, this definition seems to provide an exemption from criminal liability for almost all conceivable kinds of innocent possession.

[286] If the prohibition against possession of child pornography should be deleted from the Criminal Codeor be struck down because of overbreadth or otherwise, it would not only be lawful for those who wish to possess the recorded product of their own imaginations, but it would also be lawful for them to show such material to children as I do not believe showing something without parting with its possession constitutes publication or distribution. The same would apply to other "possessed" material, howsoever obtained, including material produced through the abuse of live models, thus creating a market for such material and enhancing greater risk of harm to children. Moreover, without sub-section (4), it would be lawful for anyone to maintain inventories of child pornography with impunity, and they could be prosecuted only if an offence against sub-sections (2) or (3) could be established.

[287] While it is not for me to say whether or how s. 163.1 might be amended, it seems to me that there would in almost every possible scenario still be a risk of harm from works of imagination or other innocent private possession through cognitive distortions and fuelled fantasies. There is, in my view, a distinction between private thoughts and thoughts recorded, which Parliament has recognized.

[288] I doubt if it would be possible for Parliament, even with the assistance of Legislative Counsel, to re-draft this definition in such a way that such persons would be absolutely protected. However, the minimal impairment rule does not require scientific perfection. Thus, the fact that some anomalies may arise is not fatal. In this case they are very remote and likely to arise very infrequently. Considering the infinite varieties of child pornography, the many different ways it can be created and used, and the harm Parliament believes it causes to children, I do not believe the minimal impairment rule is offended by this definition.

3. Proportionality

[289] As the Respondent's counsel agrees that the possession of some kinds of child pornography should be prohibited, any lack of proportionality must be found in the definition.

[290] I agree with the Respondent's counsel, and with counsel for the Civil Liberties Association, that the law has always sought to protect the privacy of our citizens, including their private papers, and the law must always be vigilant to ensure that the state does not intrude unnecessarily into our private lives. At the time of the amendments to the Divorce Act in 1986, which greatly broadened the grounds for divorce, it was said that the State has no place in the bedrooms of the nation. Similarly, it is argued, the State has no right to censor what kind of written and pictorial material we possess, particularly if it does not present a likely harm to children. I agree with counsel that the definition we are considering could criminalize some conduct that does not present a serious risk of harm to children although instances of this would be very rare. It must be noted, however, that the protection of persons possessing child pornography, for any purpose, is so far removed from the core values of the Charter that it rates very low on any scale of importance, and the general right of our citizens to the privacy of their lives is threatened hardly at all by this definition.

[291] I stress that the balancing is not just between the admitted risk of harm to children by simple possession against a right of innocent enjoyment of child pornography. Rather, the balancing is between the risk of harm to both children and society as a whole by simple possession, against the right of every person, innocent or nefarious, to possess any kind of child pornography for innocent, predatory or commercial purposes. Possession for purely innocent purposes cannot be assured by any legislation and it is impossible to know how much harm will be done to children by allegedly innocent possession. Future harm to children cannot be predicted with any degree of accuracy. Any real risk of harm to children is enough to tip the scales in favour of the legislation in the context of this case.

[292] Thus, it seems to me, Parliament, without creating any additional "sexual" offences, has considered it necessary, in order to carry out its legislative purpose, to require that anyone who imagines or muses about sex with children, refrain from recording or possessing such material lest it get into the wrong hands and cause harm to children. In weighing the role of this definition in carrying out the Parliamentary purpose of s. 163.1 for the protection of children, against the unlikely harm to someone who might wish to possess such material for innocent purposes, I am unable to say that Parliament went so far beyond what was necessary that we should strike down this legislation. No doubt, other words could have been chosen for the definition, but I doubt if there is a perfect definition, and a different definition might cause more rather than less harm. This recognizes, as I have already said, that there is a possibility (which I regard as extremely remote) that someone may offend against this section without any intention of harming children. There is always a risk that a law may have some unintended consequences, but any balancing of the risk of harm to children against the risk of harm to "innocent" possessors of child pornography as defined must be resolved in favour of children.

[293] Thus, on balance, I find that the beneficial effects of s. 163.1(4), prohibiting the possession of pornographic material as defined for the protection of children, outweigh the importance of a right likely to be enjoyed by those extremely few persons who may wish to possess such material for private innocent reasons. I believe the section satisfies the proportionality test.

Conclusion

[294] I would allow the appeal, set aside the acquittals, and direct that the trial of the Respondent proceed on all four counts of the indictment.